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3. Import Extradition within the European Union

The surrender process General considerations Post-surrender issues

3.1 Introduction

The first framework decision to be fully implemented by all Member States was Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender of persons between Member States. The Framework Decision sets out how such surrender should work in practice but it was left to each Member State to implement the Framework Decision via its own domestic legislation.

In the United Kingdom, the Extradition Act 2003 gave effect to this Framework Decision. Part 3 of the Act relates to import extradition to the United Kingdom.

Part 1, 2 and 4 of the Act relate to export extradition from the United Kingdom and therefore are outside the scope of this guidance. Part 5 of the Act contains 'miscellaneous and general provisions'.

The framework decision is at Annex B(ii) and Part 3 of the Extradition Act at Annex D(i).

A flowchart of the EAW process is shown at Annex B(v).

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3.2 Key documentation, legislation and guides available in the annexes

Documentation

Annex B

(i) The 28 territories which use the EAW
(ii) Framework Decision
(iii) EAW template
(iv) Languages in which Member States will accept an EAW
(v) Flowchart of the EAW process

Legislation and policy

Annex D

(i): Extradition Act 2003, Part 3 (as amended)
(ii): Statutory instruments

Guides

Annex E

(i) 'The EAW handbook'
(ii) European Judicial Network guides

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3.3 Roles and responsibilities

In simple terms:

Police (initial stage) 

  • Gather relevant information to present to CPS, sufficient to complete the EAW
  • In 'accusation' cases ensure that a domestic warrant is already in place; in 'conviction' cases, obtain a memorandum of conviction

Probation service

  • If a person is wanted for the purposes of completing a sentence of imprisonment following a revocation of his licence, the initial contact with the CPS may be made by either the relevant Offender Manager within the Probation Service or the police. 
  • The contact should provide the relevant information to the CPS to enable the prosecutor to draft, where appropriate, an EAW. This should include:
    • Details of original sentence
    • Licence conditions
    • Details of the breach of licence
    • Copy of the notice revoking the licence
    • Details of remaining sentence to be served; this must be calculated precisely as the EAW must stipulate the sentence to be served exactly
  • For reference to the Joint National Protocol 2011 on this issue, see also paragraph 3.4, To serve a sentence that has already been imposed

CPS  area prosecutor

  • Consider police file
  • Consider if Code Tests are passed for specified offences
  • Draft EAW if appropriate and append identification evidence (fingerprints, photograph)
  • In accordance with local arrangements, liaise with Area Champion prior to issue
  • Arrange with local court to have the EAW signed; it is customary for local arrangements to be put in place whereby EAWs are signed by a district judge
  • Once signed, send the EAW with the appended identification evidence, to SOCA Fugitives Unit
  • Deal with requests for further information from foreign judicial authority if received via SOCA Fugitives Unit

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Court

  • Judicial authority (magistrate, district judge, Crown Court judge) signs the EAW; this does not have to be the same judge who issued the domestic warrant, nor the same court.

NCA Fugitives Unit

  • Receives signed EAW from CPS
  • Responsible for translation of EAW if required
  • Circulates to relevant Member State(s) via Interpol channels
  • Arranges for enquiries to be conducted abroad to locate fugitives
  • Co-ordinates arrangements for the return to the United Kingdom of persons whose surrender has been ordered
  • Acts as intermediary between judicial authorities of Member States if further information is requested

Police (final stage)

  • Following notification by the Fugitives Unit that surrender has been authorised, UK police will travel and bring the person back to the UK. The local police, i.e. where the EAW was issued, will be responsible for collecting the person.
  • In accusation cases and in conviction cases where the person is to sentenced, the person will be brought to the court that issued the domestic warrant and not the court that issued the EAW.
  • If the EAW was issued for the person to complete a sentence that had already been imposed, for example 'revocation of licence cases', the police should take the person to prison to continue that sentence. The police should notify the relevant prison authorities and Probation Service in advance.

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The Surrender Process

3.4 When and how to issue a European arrest warrant?

When?

An EAW can be issued to seek surrender of a person for the following purposes only:

  • To be prosecuted
  • To be sentenced
  • To serve a sentence that has already been imposed

To be prosecuted

If issuing an EAW to prosecute a person the reviewing lawyer must normally be satisfied that the Full Code Test is passed. However, there may be a small number of exceptional cases where it is appropriate to consider making an extradition request based on the Threshold Test if the suspect presents a substantial bail risk.

Where, exceptionally, it is thought necessary to issue an EAW on the Threshold Test the case should be referred to the CCP or DCCP to allow for a review of the decision to proceed on the basis of the Threshold Test and that it is a case where extradition should still be requested.  If the CCP or DCCP supports the recommendation they must certify that the case meets the Threshold Test and that a time table has been set out in accordance with the charging guidance for receipt within a reasonable time.  The case can then be referred to the Head of Division (HOD) or Deputy Head of Division (DHOD) (Extradition) on Special Crime and Counter Terrorism Division for a decision.  Consent will only be given if the circumstances are exceptional.  For example, if the suspect could pose a serious risk to public safety in the requested state if they are not held in custody or they pose a significant flight risk and are wanted for serious offences in the UK.

Once authorisation has been obtained from the HOD or DHOD (Extradition), or another DHOD of Special Crime and Counter Terrorism Division if they are not available then an application for an EAW can be submitted to the courts.   Once a court date is set for any request in the requested state, a review must be carried out so that the Full Code Test is applied and/or another strict assessment should be made prior to any return if at all possible.  For cases dealt with outside of Special Crime and Counter Terrorism Division, HOD/DHOD will ask for such an assurance by the CCP/DCCP.

To be sentenced

Where a person has been convicted in absence, or has failed to answer bail following conviction, then an EAW may be issued for the purpose of his arrest and extradition so that he may be sentenced for the offence; section 142(5) Extradition Act.

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To serve a sentence that has already been imposed

Where a person has already been sentenced for an offence but has yet to serve that sentence in full, an EAW may be issued for the purpose of his arrest and extradition so that he may serve the outstanding portion of his sentence;  section 142(5) Extradition Act. This may arise in a number of circumstances including:

(a) if a person is sentenced in absence following conviction

(b) if a serving prisoner absconds

(c) if a person is released from the custodial element of his sentence subject to licence, and the licence is subsequently revoked due to a breach of the licence conditions, leading to a recall to prison

In scenario (a), the court is likely to have issued an arrest warrant prior to the sentencing hearing. This is the domestic warrant that the issuing judge will want sight off before issuing the EAW; see Extradition Act section 142(2).

In scenario (b) a person will be 'unlawfully at large' from the day they absconded, e.g. failed to return to prison following temporary release, or escaped from prison. Where a person is unlawfully at large they can be arrested without a warrant. Section 142(2A) Extradition Act does not require a domestic warrant in this scenario to underpin the EAW. If the person is to be charged with new offences however, e.g. escape from lawful custody, a domestic warrant will be needed for the new offences.

In scenario (c) a person will be unlawfully at large from the day their licence was revoked and they were recalled to prison. They can be arrested without a warrant. Therefore, section 142(2A) Extradition Act is relevant, and no domestic warrant is necessary to underpin the EAW.

In scenarios (b) and (c) the initial contact will be made with CPS by either the relevant Offender Manager within the Probation Service or the police.

Joint National Protocol relating to extradition and recall

An updated Joint National Protocol on the 'Supervision, revocation and recall for offenders released on licence' was issued in May 2011. The CPS are not signatories to the protocol but gave advice to the drafters during its preparation. The protocol contains information on extradition. It describes the category of offenders where a request to start extradition proceedings should be made by the Probation Service or police to CPS, and it notes the detailed information that should be provided to CPS in these cases.

The protocol notes (at appendix F) -

Whilst the decision whether to initiate extradition proceedings will be considered on the individual merits of the case and after close consultation with the police, the presumption is that extradition proceedings will be initiated in respect of those offenders who:

  • are on a life or indeterminate licence; or
  • are assessed as presenting a high risk of serious harm; or
  • travel abroad as part of their offending pattern. 

In all other cases the Offender Manager, in consultation with the Police, must consider whether it is in the public interest and proportionate to request extradition proceedings, taking into account the following factors:

  • the maximum length of time the offender must serve as a result of the recall where the offender has less than six months to serve or has been given a fixed term recall;
  • the index offence, with greater weight being attached to those offenders who have a history of sexual or violent offending and those offenders who have a history of prolific offending;
  • the offender's immigration status and nationality, for example, if the offender is the subject of a deportation order and liable to be removed from the UK upon re-release; and
  • the reliability of the intelligence which leads the Probation Service and/or the Police to believe that the offender is living or staying abroad. (the assessment of the intelligence will be a matter for the police)

Proportionality

The execution of an EAW necessarily involves the deprivation of liberty of the requested person and their transfer to another country. Additionally, the processes relating to the issue and execution of an EAW and the subsequent surrender of the person necessitate the expenditure of considerable resources both on the part of the CPS and by other criminal justice agencies. Therefore, it is important that applications for EAWs should only be made in cases where this is clearly appropriate and proportionate to the seriousness of the alleged offending, the likely penalty if the requested person is eventually convicted and the interests of any victim.

The Framework Decision does not include a 'proportionality' clause, other than the reference in Article 2(1), 'Scope of the European arrest warrant', which notes:

'A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.'

In England and Wales, in addition to the above requirement, in 'accusation' cases a prosecutor may apply for an EAW for a person only in respect of offences which pass both the evidential and public interest stages of the Full Code Test (but see paragraph 3.4 above on the exceptional use of the Threshold Test).

Although the Framework Decision does not include a proportionality clause, the latest edition of the EU's EAW Handbook in December 2010, link in Annex E(i) contains the following reference, which shows that proportionality is relevant and should be considered prior to issue of an EAW -

'It is clear that the Framework Decision on the EAW does not include any obligation for an issuing Member State to conduct a proportionality check and that the legislation of the Member States plays a key role in that respect. Notwithstanding that, considering the severe consequences of the execution of an EAW with regard to restrictions on physical freedom and the free movement of the requested person, the competent authorities should, before deciding to issue a warrant consider proportionality by assessing a number of important factors. In particular these will include an assessment of the seriousness of the offence, the possibility of the suspect being detained, and the likely penalty imposed if the person sought is found guilty of the alleged offence. Other factors also include ensuring the effective protection of the public and taking into account the interests of the victims of the offence.'

How?

An appropriate judge is the person who issues, i.e. signs, the EAW, and is defined in section 149(1)(a) of the Extradition Act as:

'in England and Wales a District Judge (Magistrates' Courts), a justice of the peace or a judge entitled to exercise the jurisdiction of the Crown Court'

The request to the appropriate judge to issue an EAW must be made by a constable or an appropriate person, the latter including a Crown Prosecutor.

The judge may issue the EAW if the condition in either section 142(2) or 142(2A) applies:

Section 142(2)

The condition is that -

(a) there are reasonable grounds for believing that the person has committed an extradition offence, and

(b) a domestic warrant has been issued in respect of the person.

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Section 142(2A)

The condition is that -

(a) there are reasonable grounds for believing that the person is unlawfully at large after conviction of an extradition offence by a court in the United Kingdom, and

(b) either a domestic warrant has been issued in respect of the person or the person may (if unlawfully at large as mentioned in paragraph (a)) be arrested without a warrant.

Although a constable may apply for an EAW, in accordance with the Memorandum of Understanding between CPS, SOCA (NCA) and ACPO:

'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'.

The Memorandum also provides that a Crown Prosecutor may only apply for an EAW in an 'accusation' case if -

  • 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.

And further, that a Crown Prosecutor may only apply for an EAW in a 'convicted' case if -

  • 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 United Kingdom; 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. [Note: it should be added, 'or to be sentenced']

An extradition offence is defined in section 148 of the Extradition Act, and includes the following scenarios -

Cases where wanted person has not been sentenced -

  • conduct occurred in the United Kingdom, or if outside the United Kingdom it constituted an extra-territorial offence, and
  • the conduct can be punished with at least 12 months imprisonment

Cases where wanted person has been sentenced -

  • conduct occurred in the United Kingdom, or if outside the United Kingdom it constituted an extra-territorial offence, and
  • a sentence or other form of detention of at least 4 months was imposed

In practice, most CPS areas will have agreed a procedure with the local courts for the issue of EAWs. Where possible, it is preferable to have the EAW signed, and thereby issued, by a district judge in the local magistrates' court. It is advisable to email a copy of the EAW to the judge in advance thereby ensuring that the application itself will not be unduly time consuming. The application to the judge will be made in chambers. Where available, the court's stamp or seal should be added to the foot of the signed EAW. The warrant is then sent by the prosecutor to NCA's Fugitive Unit for onward transmission.

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3.5 Relevance of the date of the offence

Can an EAW be issued?

In general an EAW may be issued for all EU Member States (and Gibraltar) regardless of the date of the offence for which extradition is sought. However, this is not the case for six Member States if the offence date precedes a 'relevant date'. The seven Member States concerned and the 'relevant date' for each are as follows:

  • The Czech Republic - relevant date 1st November 2004
  • Austria, Croatia, Italy, Luxembourg and Slovenia - relevant date 7th August 2002
  • France - relevant date 1st November 1993

If extradition is sought from the above states for offending before the relevant date, an EAW cannot be issued. Instead, in these circumstances, these states are treated as category 2 territories and an extradition request pursuant to Part 2 of the Extradition Act must be made; i.e. the procedure noted in section 4 of this guidance.

This procedure is stipulated by virtue of section 155A of the Extradition Act, and the Extradition Act 2003 (Specification of Category 1 Territories) Order 2009, SI 2010 No. 2768.

In the circumstances outlined above it may still be prudent to issue an EAW, in addition to the Category 2 extradition request, if there is intelligence suggesting that the fugitive may travel to another Member State before the Category 2 request can be executed.

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Prescription

Article 4 of the framework decision notes several optional grounds which can be cited by the requested state to refuse extradition. One such ground relates to prescription, namely:

Article 4(4) - 'Where the criminal prosecution or punishment of the requested person is statute-barred according to the law of the executing Member State and the acts fall within the jurisdiction of that Member State under its own criminal law.'

If there is a substantial period between the date of the offence and the EAW, a brief explanation for this period can be given in section 'f' of the EAW.

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3.6 Provisional arrest

In exceptional circumstances an application can be made to NCA Fugitives Unit to seek the provisional arrest of a person prior to the issuance of the EAW. NCA will require certain information and assurances from the relevant Crown Prosecutor prior to agreeing to such a request. The information required by NCA is similar to the information required to apply for an EAW. Therefore, in all but the most exceptional scenarios, an EAW should be obtained and requests for provisional arrest avoided.

In any event NCA must forward the signed EAW to the relevant Member State as soon as possible as many Member States have tight time limits for the receipt of an EAW following the person's arrest; in Bulgaria, 24 hours; in several Member States, 48 hours.

For further information, see Annex V on page 80 of the EU Handbook on how to complete an EAW, Annex E(i).

In exceptional circumstances, where it has not been possible to contact the relevant person at the CPS, NCA may itself authorise a request for provisional arrest. Where this happens NCA will notify the relevant area prosecutor as soon as possible thereafter to seek the necessary authorisation.

A request for provisional arrest is only likely to be appropriate when the location of a person is known for the following 24 hour period but is likely to be lost thereafter, and for some reason it is not possible to obtain an EAW within that 24 hour period.

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3.7 Drafting the EAW

An unannotated template EAW is attached at Annex B(iii). Prosecutors should save this template to their computers, removing the page numbers, and then use it as the basis for drafting all EAWs. The attached template includes the amendments made to section 'd' of the EAW by the implementation on 28th March 2011 of the Trials in Absence Framework Decision of 26th February 2009, reference 2009/299/JHA.

The text of the EAW was agreed unanimously by the 27 Member States and all judicial authorities throughout the EU use this template. Therefore, the existing standard text should not be altered. The standard text in the attached template is that which appears in normal print.

In addition, an annotated version of the EAW template can be found by following the link at Annex E. The text appearing in bold print in this version has been added to assist CPS prosecutors in drafting an EAW. It includes certain paragraphs that are either required in all circumstances, i.e. due to requirements of United Kingdom law, or in certain situations only. Additional explanatory 'comments' are noted in brackets.

You should choose the additional text appropriate to your case and paste it into the official template in the relevant section as a supplement to (but not a replacement for) the standard text. Of particular importance here are the statements and certificate required by s. 142 of the Extradition Act 2003; see further under "section (e) Offences concerned" below.

All fields should be completed. Do not leave blank spaces. If something is unknown or not applicable, write 'unknown' or 'not applicable'.

Once completed the EAW should be sent by email to NCA.  

See further below.

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Section (a)  Information regarding the identity of the requested person

Ensure that all sections are completed.

Name - Council of Europe guidance recommends including previous official names if known.

Alias - Council of Europe guidance recommends including false names and nicknames, and also false dates of birth.

Distinctive marks - Such as height, weight, build, hair and eye colour, tattoos and scars etcetera. Council of Europe guidance suggests: 'Indicate also, if the person is dangerous and / or may carry a weapon'; this latter information could be elaborated upon in section (f).

Photo and fingerprints - The requesting law enforcement agency should provide this information; write if any of photograph / fingerprints / DNA profile are to be attached to the EAW. Note: DNA profiles will rarely if ever be submitted due to difficulties of transmission across borders.

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Section (b) Decision on which the warrant is based

Section (b)1 -

Section 142 of the Extradition Act (see above) notes the conditions stipulating when an EAW may be issued in England and Wales. Where a domestic warrant has been issued, details of that warrant are included in section b(1) of the EAW. The domestic warrant itself is not attached to the EAW.

In a 'convicted' case there may still be a domestic warrant in place. For example, if the defendant failed to answer his bail during the trial, a Crown Court bench warrant will have been issued. Details of this warrant would be referenced in b(1).

In other 'convicted' cases there might not be a domestic warrant at all. Section 142(2)(A) of the Extradition Act allows for this possibility. If a person is wanted for recall to prison as a result of revocation of licence following breach of licence conditions, that person is 'unlawfully at large' from the date his licence is revoked and may be arrested in England and Wales without the need of a domestic warrant. However, the foreign judicial authority will expect to see information in box b(1). In these circumstances, as the EAW is issued to secure a person's return to serve the remainder of his sentence, the relevant 'judicial decision' at section b(1) is the original sentence. Details of the place, date and sentence can be noted therefore in section b(1).

There is no legal objection to including separate accusation and conviction cases against the same defendant in a single EAW but care is needed to ensure that the different matters are clearly set out.

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Section (c) Indications on the length of the sentence

In accusation cases complete section (c)1 and write 'Not applicable' in section (c)2.

In conviction cases, the reverse applies.

In accusation cases, indicate the maximum sentence prescribed by law for each offence, e.g.-

1. Attempted Murder - Imprisonment for life
2. Threats to kill - Imprisonment not exceeding ten years
3. Theft - Imprisonment not exceeding seven years

In conviction cases, indicate the actual sentence imposed, e.g. -

1. Attempted Murder - Life imprisonment
2. Threats to kill - 5 years' imprisonment
3. Theft - 18 months' imprisonment

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Section (d) Cases when decisions rendered in absentia

Section 'd' is where in a post conviction case, the issuing judicial authority indicates whether or not the person was convicted in their absence. If so, further information must be given concerning the circumstances of that conviction.

Section 'd' of the EAW template was substantially reworded by article 2(1) of the Trials in Absence Framework Decision of 26th February 2009, which should have been implemented throughout the EU by 28th March 2011. The EAW template in Annex B(iii) contains the amended section 'd'.

Some Member States have not implemented the Trials in Absence Framework Decision yet and therefore are not using the new template. However, guidance issued by the Hungarian Presidency of the European Union on 1st April 2011 indicates that Member States should use the updated template where possible. In the United Kingdom, no statutory change was required to implement the Trials in Absence Framework Decision. Therefore, the amended EAW template should now be used.

If the wanted person was present at their trial, tick box 1, 'yes'. If not, tick box 2, 'no'.

If the wanted person was present at some part of the actual trial but then absconded either before verdict or between verdict and sentence, tick box 1 but add additional text in section (f) detailing the actual dates of their appearance and absconding.

If 'no' is selected, the prosecutor must then tick one of the options from 3.1 to 3.4, and in certain circumstances must give further information at point 4.

The scenarios noted in sections 3.3 and 3.4 will rarely, if ever, be applicable to a trial held in England / Wales.

The scenario noted in section 3.2 would be difficult to establish. When suspects fail to attend a trial, their legal representatives may take a watching brief but only rarely do they 'defend' the person, given their inability to receive instructions.

The scenarios noted in section 3.1 will be more commonplace where a trial is held in a person's absence.

Important note - care must be taken if a trial date is vacated and then relisted in the absence of the accused. The purpose of section 'd' is to establish to the satisfaction of the executing judicial authority that one of the criteria in sections 3.1 to 3.4 has been met. If not, surrender is likely to be refused. The issue may also be raised by the defence post surrender. If so, and the court in England / Wales is not satisfied that the information provided in section 'd' was correct, the prosecution may be held to be an abuse of the process of the court due to misinformation supplied in the EAW. Therefore, if a trial is relisted in the absence of the accused, the prosecutor should request that the court notify the accused of the new trial date in a manner that satisfies one of section 3.1 scenarios.

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Section (e) Offences concerned

Subheading 1

'This warrant relates to in total:  ...............  offences.'

In the United Kingdom section 142(4) of the Extradition Act requires the EAW to contain a specific statement in respect of accusation cases, whilst section 142(5) imposes a similar requirement in conviction cases. These statements refer to the purpose of the EAW.

In addition, section 142(6) requires the EAW to contain a 'certificate' that states: (1) whether the offences are framework list offences or not, (2) if they are extra-territorial offences and, (3) an indication of the maximum length of sentence.

The relevant text to satisfy these requirements is shown in the template.

Additionally, in accusation cases a 'statement' is included (remember that a 'judge' - which can include a justice of the peace: section 149 of the Extradition Act) signs the EAW even though a prosecutor drafts it), which confirms that a Crown Prosecutor has decided to charge the wanted person for the offences noted in section 'e'. This statement is included in the template.

These statements and certificate must be included in every EAW issued from the UK.

Subheading 2

'Description of the circumstances in which the offence(s) was (were) committed ....'

Under this heading write a concise case summary, using plain English as the EAW may have to be translated. Do not merely copy pages from a submitted police file. Ensure that the description includes the time and place of each alleged offence and the degree of participation of the requested person in each offence.

Subheading 3

'Nature and legal classification of the offence(s) ....'

Under this heading write a description of the law. If a statutory offence, cite the relevant statute and sections; if a common law offence, include a brief summary of the offence. If the offence was committed some time ago, mention if any limitation period applies.

Subheading 4

'I. If applicable, cross one or more of the following offences ....' -

The 32 Framework List offences are then listed in the EAW template. If the offence you are seeking surrender for falls within paragraph I, this should accelerate the process as offences in paragraph I do not require 'dual criminality'; i.e. the foreign state does not have to find a like offence within its own legal system.

If an offence in the EAW does not fall within paragraph I, the foreign state is likely to have to establish dual criminality. That is, the foreign judicial authority must be satisfied that the alleged acts, i.e. the conduct described, would also constitute an offence in their country, 'whatever the constituent elements or however it is described', Article 2(4) Framework Decision.

See also paragraph 3.8 on dual criminality.

Subheading 5

'II. Full title(s) and descriptions of offence(s) not covered by section 1 above.' -

If you have already described all the offences previously (i.e. following 'Nature and legal classification...'), it is enough to write here:

'Offence Z - The nature and legal classification of this offence and the applicable statutory provisions / codes are noted above.'

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Section (f) Other circumstances relevant to the case (optional information)

Additional text is included in the template which references sections 18 and 96 of the Extradition Act, concerning onward extradition of surrendered persons; i.e. it notes UK law regarding onward extradition to another country of a person who has been extradited to the United Kingdom. These legal assurances are required by some but not all of the other EU Member States. The text however can be used in any EAW.

Remember when completing section (f) that you are putting the information contained within it in the public domain. Care should be exercised when providing information about dangerousness, flight risk and so on.

Dangerous persons

If you have information on the dangers the foreign police may encounter in arresting the requested person (history of violence, resisting arrest, access to weapons) include this information here, or in section (a). The foreign police need to make an informed decision on the level of risk involved, number of officers necessary etcetera, when planning an arrest.

Assessment of flight risk

After arrest under an EAW the executing judicial authority must consider bail status. Unless this information has been supplied on a police to police basis the only information available to the executing judge is the EAW. Therefore, if you have relevant information on the likelihood of the person absconding if granted bail, include detailed but concise information in this section.

Conviction EAWs where non-surrender is possible

Additional text is suggested to cover the situation where the purpose of the EAW is to secure the surrender of a person from a Member State who may refuse to surrender for that purpose.

Time between offence and date of EAW

If there is a substantial period between these two dates, reasons for this should be noted briefly.

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Section (g) Seizure and handing over of property

If you believe the person will have in his possession evidential items relevant to your case (on his person or at his place of work / residence) include details under the subheading, 'Description of the property ...'.

If this assistance is not required, write 'Not applicable'.

Council of Europe guidance states that the more precisely this box is filled in, the more likely it is that future letters of request may be avoided.

However, it must be remembered that items seized under the authority of an EAW pursuant to this section are unlikely to be handed over as evidence until the person himself is surrendered. Additionally, authorities in some Member States may only have limited powers to search for, or seize, items pursuant to a request in section 'g'. Most requested authorities will have much greater powers pursuant to a mutual legal assistance request, i.e. a letter of request pursuant to the Crime (International Co-operation) Act 2003.

LORs also have the advantage in this context in that if the EAW is not executed (for whatever reason) by the requested territory, items seized under section (g) will not be handed over. Additionally, if the evidence is required before surrender e.g. to build the case for prosecution, an LOR will be required.

If a letter of request is sent requesting a search of the wanted person's property, the prosecutor and police should consider how to co-ordinate the issue of the letter of request with the arrest of the person under the EAW. If the letter of request is sent and executed before the person is arrested under the warrant there is a danger that the person is 'tipped off' and flees the jurisdiction.

Section (h) Assurances regarding life sentences

If an offence carries life imprisonment, insert the offence, include both optional statements and add the additional text.

Section (i) The judicial authority which issued the warrant

Include the relevant details of the issuing judge and also of the central authority.

N.B. ensure that the EAW is signed and dated, and if available, obtain a relevant court stamp.

Digital Submission  of EAWs

An electronic version of the signed EAW, together with a photo of the subject, the subject's fingerprints, a copy of the bench/ first instance warrant and any intelligence should be sent to NCA. The identification material and any intelligence material may either be sent directly to that address by the police or via CPS (if supplied to the prosecutor in electronic format).

A message will be sent to confirm receipt - this will include the name of the NCA officer dealing and the case reference number to be quoted in all further correspondence.  Clearly it is essential that the scanned copy of the EAW is legible, including the signature of the magistrate or judge who granted the EAW and that NCA receives contact details for both the OIC and the CPS prosecutor.

A very small minority of EAW countries will require the original of the EAW to be sent to them within 48 hours of the arrest of a fugitive. The responsibility for supplying this will fall on the requesting force but it is advisable to agree local arrangements with investigators as to the safe storage of the original EAW (whether by the police or the CPS). The location of the warrant and suitable contact details will need to be provided to NCA who will inform the case officer of address details to which the EAW are to be sent should this ever become necessary.

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3.8 Dual criminality

Relevance of dual criminality

In accusation cases an EAW may be issued in England and Wales for an offence capable of punishment with detention of 12 months or more. In conviction cases an EAW may be issued for an offence if a sentence of at least 4 months was imposed.

For certain offences, listed in article 2(2) of the Framework Decision and known as 'framework list offences', if the offence is capable of punishment in the issuing state of detention for 3 years or more, then there is no requirement to establish dual criminality.

However, if an offence does not fall within the framework list, article 2(4) of the Framework Decision is relevant. It states:

'For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.'

Article 2(4) therefore stipulates that for non list offences, surrender 'may' be subject to a dual criminality requirement. This is reiterated in article 4 of the Framework Decision, which notes the optional grounds for refusing to execute an EAW. It notes:

'4. The executing judicial authority may refuse to execute the European arrest warrant: 

1. if, in one of the cases referred to in Article 2(4), the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State ....'

With regard to EAW requests by other Member States to the United Kingdom, i.e. export extradition, United Kingdom law makes the need for dual criminality mandatory for non framework list offences as otherwise the requested offence would not constitute an extraditable offence under section 64 of the Extradition Act. The position however may be different throughout the EU as article 4(1) of the Framework Decision only creates an optional ground for non-execution if dual criminality is not found; i.e. in accordance with the Framework Decision the absence of dual criminality does not order that the EAW must fail.

Therefore, it is not possible to make a generalised statement as to the relevance of dual criminality throughout the EU as the position will depend on how each respective Member State has incorporated article 4(1) into its domestic law.

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No need for an identical offence

Another important factor is that article 2(2) does not require the requested state to have a mirrored offence with the same or even similar wording. Rather, the conduct described in the EAW must, 'constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.'

Who determines dual criminality?

It is a function of the executing foreign judicial authority to determine dual criminality should the issue arise. It is not the responsibility of the issuing judicial authority, which in England and Wales will usually be a district judge. Nor, twice removed, is it the responsibility of the person who drafts the EAW, i.e. a prosecutor.

Further considerations

An EAW is not Member State specific but applies in all other Member States and in Gibraltar. At first glance there would be no point in issuing an EAW if a person were known to be in Member State X, and that state had confirmed both that dual criminality could not be established, and that the of absence of dual criminality would lead to non-execution of the warrant. However, if there were intelligence to suggest that the wanted person may travel to another Member State where the issue of dual criminality was not already known, it may still be prudent to draft an EAW, which could be issued at very short notice if the wanted person then travelled to the other Member State.

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Practical example - offences relating to the Sexual Offences Register

In England and Wales, offences relating to notification under the Sexual Offences Act 2003 can be punished by prison sentences of up to 5 years. However, although 'sexual exploitation of children' is a listed offence in the EAW framework decision, a notification offence does not fall into this category. As a consequence, if an EAW is issued for this offence, it is likely that the requested Member State will have to establish dual criminality.

Some Member States (for example, France) do have a sexual offences register. For these states, it is likely that the executing judicial authority will establish dual criminality and therefore that this will not be a bar to surrender.

Other Member States will not have a sexual offences register. This however will not of itself mean that an EAW would fail, for two reasons.

Firstly, as noted above, in the Framework Decision the absence of dual criminality is an optional ground for refusing an EAW and not a mandatory ground. Each Member State will have implemented the Framework Decision via domestic legislation and not all Member States will have made dual criminality a mandatory requirement.

Secondly, the foreign judge does not have to find a mirror offence in their state's legal system; rather, the judge must be satisfied that the acts described in the EAW 'constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described', article 2(4) Framework Decision. And crucially, this consideration is for the foreign judicial authority to make and not the authorities in the United Kingdom. A prosecutor should be extremely wary of attempting to second guess what the executing judicial authority may find; attempting to do so essentially usurps the role of the executing judicial authority in a manner which cannot be justified and should be avoided.

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3.9 Sentenced cases - enforcement of sentence in the requested state

Where a person is wanted for the purpose of execution of a custodial sentence, then in circumstances specified in article 4(6) of the Framework Decision, Member States may, if in accordance with its domestic law, elect not to surrender the person but rather to enforce the sentence in its territory. Article 4(6) states -

'The executing judicial authority may refuse to execute the European arrest warrant: ...

(6) if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law;'

The United Kingdom has not implemented this optional ground for refusing to execute an EAW but the majority of other Member States, including France, Germany and the Netherlands adopt this approach.

Therefore, when you are asked to draft an EAW for the surrender of a fugitive to serve a sentence, you should consider including with the agreement of the issuing court a note in section (f) to the effect that if the executing judicial authority is required by its domestic law to refuse to surrender the requested person on the grounds of Article 4(6) of the FD then it is requested to supply an undertaking that it will execute the sentence in accordance with its domestic law. 

Following the arrest of the wanted person in the other state, if the requested judicial authority intends to invoke its domestic implementing legislation that gave effect to article 4(6), it should notify NCA Fugitive's Unit, although sometimes it will make direct contact with the relevant prosecutor. Practices vary from country to country but some foreign authorities will ask that we consent to the transfer of the sentence for execution abroad. 

Strictly, this is a decision for the court which issued the original warrant because the EAW scheme works on the basis of mutual recognition of requests made by one judicial authority to another. It is important to make the court managers aware of the request. In addition, the Offender Safety, Rights & Responsibilities Group at the National Offender Management Service may be able to assist in transferring the sentence where a suitable protocol or treaty exists with the executing country. Where an issue of this nature arises, contact NOMS for advice using the contact details at Annex A (vi). 

If Article 4(6) is invoked, and the requested Member State undertakes to impose the UK sentence in its territory, then pursuant to section 145 of the Extradition Act, the UK sentence is 'treated as served'. Sentences transferred abroad as a consequence of EAW requests can be "adapted" or "converted" by the relevant foreign authority so that they accord with maxima current in the executing State. On occasions this may mean a reduction in the term imposed by courts in England and Wales.

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3.10 Prosecution cases - return to extraditing territory to serve sentence imposed

Article 5(3) of the Framework Decision provides that if a person who is wanted for the purpose of prosecution is a national or resident of the requested state, then that state may make surrender conditional on the subsequent return of the person to the requested state to serve any sentence that is imposed in the requesting state following surrender under the EAW.

The following MS require such a guarantee:

  • Austria
  • Bulgaria
  • Cyprus
  • Estonia
  • Finland
  • France (optional)
  • Hungary (at request of the person concerned)
  • Netherlands
  • Romania
  • Slovenia

For example, X, a Dutch national or resident, is surrendered from the Netherlands to the United Kingdom where he is convicted and sentenced. X is then returned to the Netherlands to serve there the sentence imposed by the United Kingdom court.

In the United Kingdom, this scenario is given effect via section 153C of the Extradition Act, which came into force in January 2010 when the previous relevant section, section 144, was repealed.

Akin to section 153A in temporary surrender cases, section 153C enables the Secretary of State to give the requisite undertaking to the requested state, to ensure that if the person is surrendered under the EAW and then sentenced in the United Kingdom, then following imposition of a custodial sentence in the United Kingdom the person will be returned to the requested state to serve the sentence there.

If this procedure is followed, section 153C(5) treats the United Kingdom sentence as served once the person is returned to the other state.

Important note - undertakings must not be given by prosecutors. The provision of undertakings in this context is pursuant to statute and they are given only by the Secretary of State. Application for the relevant undertaking should be made to the Judicial Co-operation Unit (JCU) at the Home Office.  The Home Office's extradition lawyers will prepare the undertaking itself.

The prosecutor should contact Home Office's extradition unit upon conclusion of the proceedings in England and Wales, so that the Secretary of State's undertaking can be discharged.

See also section 153C Extradition Act.

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3.11 Temporary surrender of persons serving a sentence in the requested Member State

On occasion the wanted person will be a serving prisoner in the requested Member State. In these circumstances, article 24(2) of the Framework Decision allows for the temporary surrender of the person subject to conditions agreed between the executing and requesting judicial authorities.

In the United Kingdom, this option is provided for in section 153A of the Extradition Act, which came into force in January 2010, when the previous relevant section, section 143, was repealed.

If a person is a serving prisoner in the requested state, then the executing judicial authority will usually have two options (depending on how each Member State has implemented the Framework Decision into its domestic law). Firstly, they can decide whether or not to authorise surrender, and if they decide to do so they may postpone the surrender date until the domestic sentence in their state is served. Alternatively, they may agree to a temporary surrender of the person to the requesting state, usually subject to conditions.

In the context of a United Kingdom EAW, the conditions imposed usually require an undertaking that if surrendered, (1) the person will be remanded in custody during his stay in the United Kingdom, and (2) that following conclusion of the proceedings in the United Kingdom, the person will be returned to the requested State to complete his foreign sentence there.

Important note - undertakings must not be given by prosecutors. The provision of undertakings in this context is pursuant to statute and they are given only by the Secretary of State.

Section 153A enables the Secretary of State, rather than a judicial authority as envisaged in the Framework Decision, to make the necessary undertaking. Application for the relevant undertaking should be made to the Judicial Co-operation Unit at the Home Office.

Section 154 of the Extradition Act effectively binds the United Kingdom courts and mandates them to respect the Secretary of State's undertaking that a person will be remanded in custody during the temporary transfer. It provides that the court may only bail a person who is subject to such an undertaking if there 'are exceptional circumstances which justify it.'

After proceedings conclude in the United Kingdom the person will be returned to the other Member State to continue and complete the foreign sentence. What is meant by 'conclusion of the proceedings' is not defined in the Extradition Act but is likely to be construed as the day of acquittal, or if convicted 28 days after the day of sentence, to allow for the possibility of an appeal being lodged.

The prosecutor should contact Home Office's extradition unit upon conclusion of the proceedings in England and Wales, so that the Secretary of State's undertaking can be discharged.

If the person is convicted and given a custodial sentence in the United Kingdom, and then returned to the other Member State, another EAW (this time a conviction warrant) will normally be required in due course to secure the person's further, and unconditional, surrender to the United Kingdom in order to serve the domestic sentence, unless this has already been agreed as part f the original surrender agreement. It is advisable to enquire through NCA what the foreign authorities require. In these circumstances it is important to ensure that the second EAW is issued before the person completes his foreign sentence and is released; otherwise there is a risk that the person will not be located when the second EAW is issued. In the circumstances specified in article 4(6) of the Framework Decision, it is possible that the other state will enforce the UK sentence there rather than surrender the person; see paragraph 3.9.

See also section 153A  and section 154 Extradition Act.

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3.12 Bringing the person back to the United Kingdom

If the person's extradition is ordered, NCA'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. 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(b), 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. 

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3.13 Withdrawing an EAW

An EAW is issued by an 'appropriate judge', i.e. a district judge of the magistrates' courts, a justice of the peace or a judge entitled to exercise the jurisdiction of the Crown Court. If for any reason the prosecutor decides that the EAW should no longer be pursued, the prosecutor should apply to the court to have the warrant withdrawn. Neither the prosecutor, the police or NCA's Fugitive Unit have the authority to withdraw an EAW issued by the court.

The police should consider applying to withdraw any related domestic warrants.

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General Considerations

3.14 Jurisdiction, transfer and surrender of own nationals 

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. Early consultation between the national authorities is recommended. Such consultations can be facilitated by the Eurojust representatives of the member states involved.

For guidance see The Director's Guidance on the handling of cases where the jurisdiction to prosecute is shared with prosecuting authorities overseas. See also the Legal Guidance chapter entitled "Jurisdiction".

In its 2003 Annual Report Eurojust established guidelines to help resolve concurrent claims to jurisdiction. This is available via the Eurojust website following the 'Press & PR' link. (http://www.eurojust.europa.eu/).

The factors listed in the 2003 guidelines 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

Eurojust has also issued guidance on how to proceed where two or more member states have issued EAWs for the same individual. The guidance is contained in an Annex to the Eurojust Annual Report 2004 which contains a set of criteria for determining precedence between competing EAWs.  Where such a situation arises and local efforts at resolution are unsuccessful, prosecutors may wish to contact the national desk at Eurojust for assistance in resolving the matter.

Council Framework Decision 2009/948/JHA of 30th November 2009 on the "prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings" was due for implementation throughout the EU on 15th June 2012. Its aim is to prevent conflicts of jurisdiction arising and to reach consensus between Member States where parallel proceedings exist. Arrangements for implementation in the United Kingdom are still under consideration.  Therefore, not all the provisions are in force yet. A Gateway will be issued if the United Kingdom implements the Framework Decision.

Note: when pursuing an offender for an extra-territorial offence, i.e. one committed outside our jurisdiction, prosecutors must satisfy themselves that the courts in England and Wales will have jurisdiction in relation to the proposed extradition offence, if surrender is granted.

Transfer of proceedings

Following a consideration of concurrent jurisdictional issues it may be necessary to transfer the proceedings to another Member State with a request that the extradition matter be pursued there. The United Kingdom cannot obligate another state to investigate or prosecute a matter. Rather, the transfer request is a formal request that the other state give consideration to an investigation and prosecution. For further guidance see paragraph 2.10 of the Legal Guidance on International Enquiries.

Surrender of own nationals

In accusation cases the Framework Decision does not allow a Member State to refuse surrender of its own nationals purely for that reason. However, in certain circumstances the requested state may elect to enforce a sentence in its territory rather than surrender the wanted person (see paragraph 3.9 above), or in accusation cases, it may make surrender conditional on the person being returned to serve in its territory any sentence that is imposed post-conviction in the requesting state (see paragraph 3.10 above.)

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3.15 Disclosure

Prosecutors should consult Chapter 35 of the Disclosure Manual, particularly sections 35.42 to 35.96 which deal with import extradition under the EAW scheme. It is important to note the duty of candour on the prosecutor in outlining the prosecution case in the request. The description of the case in the request will usually be the only information upon which the extradition proceedings (including issues of bail) will be determined. It is of the utmost importance that the prosecution case is put accurately and fairly. This operates as a protection for the requested person and it also safeguards against later allegations of manipulation of the extradition process that might give rise to a stay on the grounds of abuse of the process.

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3.16 Veiled extradition

A veiled extradition is an attempt to avoid formal extradition procedures to secure a person's surrender e.g. by seeking their deportation form a foreign state or by lures to come to this jurisdiction. Crown Prosecutors should obviously ensure that this does not arise. Were it to do so, a stay of proceedings due to abuse of process is likely to result.

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Post-Surrender Issues

3.17 Import extradition within the European Union - Post Surrender - Specialty and Prosecuting Additional Offences

The principle and case-law

The rule of specialty 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 principle is referenced in articles 13 and 27 of the Framework Decision, Annex B(ii), and sections 146 and 147 of the Extradition Act, Annex D(i).

Key cases include -

R v Seddon (Neil), [2009] EWCA Crim 483

R v Jones (Royston), [2011] EWCA Crim 107

Leymann and Pustovarov, European Court of Justice, Third Chamber, 2008, Case C-388/08 PPU

Importance of observing the specialty principle

Observing the specialty principle is important as otherwise it may not be possible to prosecute, sentence or enforce a sentence for another offence that predates the date of surrender.

The EAW must refer to all offences that you want to prosecute the person for. If it does not and you subsequently wish to prosecute for an offence other than that for which the person was surrendered, the specialty principle will prevent the further prosecution unless this is made possible via one or more of the routes provided in sections 146(3-5) of the Extradition Act.

The EAW must also refer to all offences for which the person has already been convicted in the United Kingdom but in respect of which either he has not yet been sentenced or has not yet completed a sentence that had already been imposed. If this does not happen, then the sentence for the offence omitted from the EAW will be treated as remitted; for further information, see "Import within EU - Remission of punishment" (below).

When drafting the EAW it is therefore important that the police confirm that the person is not wanted by other forces, either pre or post conviction, in respect of other offences. When the requested person has been returned it is equally important to check that the offences included on the indictment on which he or she will be tried have all been included in the EAW. Offences which have not been included cannot be tried unless one of the remedies set out below can be applied. In this context you should also consider the necessity to include offences for which a suspended sentence has been imposed. Unless such offences are included on the EAW the judge cannot activate the sentence upon return.

Specialty and Bail Act Offences

R v Seddon dealt with a situation where a Bail Act offence was pursued upon the defendant's surrender but that offence had not been specifically referenced in the EAW nor disclosed by the information provided. The court held that pursuing a Bail Act offence in these circumstances breached the specialty rule but it also noted (at paragraph 27) that it is open to the applicant prosecuting authority to seek to include in the EAW a request for surrender for the Bail Act offence. That by itself sufficiently amounts to an accusation.

The court also noted that if the request were not included in the EAW, a further request for consent could be issued (i.e. pursuant to articles 27(3)(g) and 27(4) of the Framework Decision and section 146(3)(c) of the Extradition Act 2003). The preferred approach, however was to include the reference to the Bail Act offence specifically as one of the extradition offences listed in section (e) for which surrender is sought. A short statement of the relevant law should also be added to section (e) II as Bail Act offences are not included in the Framework list. 
 
The subsequent case of R v Jones (Royston), [2011] EWCA Crim 107, followed the court's decision in Seddon, in relation to the prosecution for a fail to surrender charge which had not been included in the EAW.

The specialty protection is not absolute

Section 146 of the Extradition Act notes the circumstances in which a person may be dealt with for an offence other than that for which he was surrendered. Specialty does not preclude prosecution for:

  • An offence in respect of which the person waives his right to specialty.
  • An offence disclosed by the information provided to the other Member State in the EAW. 
  • An extradition offence in respect of which consent to the person being dealt with is given on behalf of the other territory, in response to a request made by the appropriate judge.
  • If the person is given the opportunity to leave the United Kingdom but fails to do so.
  • Certain minor matters including an offence which is not punishable with imprisonment or another form of detention, and an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal.

Waiving the specialty protection

Extradition Act 2003, section 146(3)(f)
Framework Decision, article 27(3)(e)

Section 146(3)(f) of the Extradition Act enables a person to be dealt with for an offence in respect of which the person waives his right to the specialty protection.

If a person is arrested under an EAW and consents to his surrender, he will also be asked if he agrees to waive his right to specialty. If he does then Article 27(3)(e) of the Framework Decision suggests that the waiving of the specialty protection is irrevocable. It is possible however that the domestic implementing legislation of the relevant Member State will have to be consulted to clarify the situation.

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An offence disclosed by the information provided

Extradition Act 2003, section 146(3)(b)
Framework Decision, articles 27(1) and 27(2)

Section 146(3)(b) Extradition Act provides that a person -

'may be dealt with in the United Kingdom for an offence committed before his extradition ... [if it is] ... an offence disclosed by the information provided to the category 1 territory in respect of that offence'.

This aspect of the specialty principle was considered in R v Seddon. There, the court referred to 'lesser included offences'. For example, for the offence of murder, the offences of grievous or actual bodily harm are 'lesser included offences'. Therefore, if an EAW were issued for murder, the court confirmed that the returned person could be prosecuted for GBH or ABH, pursuant to section 146(3)(b).

The specialty principle and the significance of the words 'other than' in Article 27(2) of the Framework Decision were considered by the European Court of Justice in the case of Leymann and Pustovarov in 2008, Case C-388/08 PPU. The court held that a careful consideration of the facts could reveal that the 'new' offence was in essence so closely related to the original offence specified in the EAW that it was not in fact an 'other' offence at all, and the consent process was not necessary. It noted:

'... it must be ascertained whether the constituent elements of the offence, according to the legal description given by the issuing State, are those in respect of which the person was surrendered and whether there is a sufficient correspondence between the information given in the arrest warrant and that contained in the later procedural document.'

As a result, modifications concerning the time or place of the offence are allowed, in so far as:

  • They derive from evidence gathered in the course of the proceedings conducted in the issuing State concerning the conduct described in the arrest warrant
  • They do not alter the nature of the offence
  • They do not lead to grounds for non-execution under articles 3 and 4 of the Framework Decision.

In the Leymann case itself the CJEU held that prosecuting the two accused for trafficking in cannabis did not breach the specialty principle even though the EAWs under which they had been surrendered specified trafficking in amphetamines. Since the conduct at trial still fell within the definition of 'illegal trafficking in narcotic drugs' in the Framework Decision and since the penalty was the same there was no breach of the specialty principle.

It is also likely that where a request has been made in respective of a substantive offence, it would be possible to charge a conspiracy to commit that offence after the surrender.  

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Request for consent

Extradition Act 2003, section 146(3)(c)
Framework Decision, articles 27(3)(g) and 27(4)

If section 146(3)(b) of the Extradition Act and article 27(4) of the Framework Decision do not allow you to pursue other offences, i.e. over and above those disclosed in the EAW, then in the absence of the person's agreement to waive the specialty rule, a further application must be made to the executing judicial authority. The procedure is dictated by articles 27(3)(g) and 27(4) of the Framework Decision, and section 146(3)(c) of the Extradition Act.

The process requires that a further EAW template be completed but the title European Arrest Warrant should be deleted and substituted with the words, 'Request for consent'. The completed form, signed by an appropriate judge, should be submitted, as any EAW, via NCA.

The Request must be accompanied by the same information required under Article 8.1 for an EAW including an arrest warrant in respect of the additional offences (Articles 27.4 and 8.1 (c)). It is submitted that the mere act of obtaining a new warrant does not breach the principle of specialty since its execution is contingent upon consent being given in due course by the requested State . However, to avoid any suggest of abuse of process it is undoubtedly good practice to put the court and defence on notice of the intention to apply for the new warrant and the limited purposes for it. It is also advisable not to seek to remand the defendant on the new warrant until consent to prosecute is given by the foreign authority (see Leyman and Pustovarov paragraphs 73 - 76).

NCA will transmit the warrant and request to the requested state where it will be considered. Article 27(4) of the Framework Decision requires the requested judicial authority to make a decision on consent within 30 days of receiving the request.

The requested state may ask for evidence of the requested person's response to the request. There are various ways of achieving this but it can most easily be obtained by listing the case before the trial court and having the issue of consent formally put to him and his answers recorded. If he consents to waiver then there is no need to puruse the formal application (see s. 143(3)(f)). If consentt is not given then the court record can then be forwarded (with a translation) via NCA to the appropriate judicial authority.

Given the opportunity to leave the United Kingdom

Extradition Act 2003, sections 146(4) and 146(5)
Framework Decision, article 27(3)(a)

Section 146(4) of the Extradition Act which gives effect to article 27(3)(a) of the Framework Decision. Section 146(4) provides that if a person is given an opportunity to leave the United Kingdom, for example following an acquittal or a non-custodial sentence in respect of the offences for which his surrender was ordered, then if he fails to do so within the 'permitted period' or does so and returns within that period, he may then be dealt with for other offences that predated his extradition.

The 'permitted period' is defined in section 146(5) of the Extradition Act as '45 days starting with the day on which the person arrives in the United Kingdom.'

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3.18 Remission of punishment for other offences

The importance of including all extraditable matters in the extradition request is underlined by section 152 of the Extradition Act, which provides that where -

  • The defendant has been extradited to the United Kingdom from a territory (i.e. whether within or outside the EU), and 
  • Before his extradition he has been convicted of an offence in the United Kingdom, and 
  • He has not been extradited in respect of that offence, then

The sentence for the offence must be treated as remitted but the person's conviction for the offence will be treated as such for all other purposes.

For this reason it is very important that the police confirm that the person is not wanted post-conviction in the United Kingdom for any matters other than those disclosed in the EAW.

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3.19  Return of person acquitted or not tried

Section 153 of the Extradition Act is headed, 'Return of person acquitted or not tried'. It provides that in accusation cases, where a person is extradited to the United Kingdom from a Category 1 or 2 territory, then if -

  • Proceedings are not commenced within 6 months of his arrival in the United Kingdom,

or 

  • At his trial the defendant is discharged / acquitted, then

The Secretary of State must arrange for his prompt return free of charge to the extraditing territory, provided that the person makes the necessary application within 3 months of either the 6 month period expiring, or the date of acquittal / discharge.

The meaning of 'proceedings' in section 153(2)(a) is not defined in either the Act or the Explanatory Note and might, conceivably, refer to the commencement of the trial. However, it is settled law that the commencement of the prosecution is the laying of the information or complaint, or the preferring of the indictment (when there are no proceedings in the magistrates' court); or, it would seem, the arrest and charge of the accused person or the application for a summons or warrant in respect of the offence (see [2012] Archbold paragraph 1-276). Therefore, provided one of these events happens within 6 months of the requested person's surrender, it can reasonably be argued that the requirement of section 153(2)(a) has been met regardless of the date on which the trial commences, since the term "proceedings" is wide enough to encompass the criminal prosecution process from the institution of the prosecution until the final determination of the proceedings (see e.g. the observations of Hooper LJ in Neave v Italy [2012] EWHC 358 (Admin)). Clearly, where the trial does begin within six months of surrender, any potential difficulties are avoided.

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3.20 Crediting of periods of remand in custody during extradition process

If the wanted person is convicted following his extradition, prior to sentencing the United Kingdom court may want to know the time spent in custody abroad during the extradition process.

Sections 240ZA and 243 of the Criminal Justice Act 2003 (as amended) together contain the provisions which determine whether or not time spent in custody abroad during the extradition process will be credited in the United Kingdom when the person is sentenced for the offence for which he was extradited. 

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