Extradition
Appendices
- Designated Category 1 Territories
- Designated Category 2 Territories
- Attorney General's Assignment of Extradition Functions 10th December 1996
- Part 1: Extradition Offence Definitions
- Part 1: Bars to Extradition
- Category 2 Territories which have more than 45 days to supply formal extradition request following provisional arrest
- Part 2: Extradition Offence Definitions
- Part 2: Bars to Extradition
- Category 2 Territories not Required to Provide Prima Facie Case in Support of Extradition Request
- Countries Operating the EAW
Definition
Extradition is the formal procedure for returning persons located in one country to another country for the purpose of criminal prosecution, to be sentenced for offences for which they have been convicted or for the carrying out of a sentence which has already been imposed.
Terminology
- Export extradition request: request for the extradition of someone from the UK. Also known as "incoming" extradition.
- Import extradition request: request for the extradition of someone to the UK.
- Provisional arrest: emergency procedure for securing the urgent arrest of someone who is wanted for extradition pending submission of the EAW or extradition request.
- Speciality: the principle that a person shall be tried/punished following extradition only for the criminal conduct in respect of which he has been extradited.
- "The person": the Extradition Act refers to the person whose extradition is sought as "the person".
- Veiled extradition: circumventing the extradition process. Any criminal proceedings following return are at risk of being stayed on the grounds of abuse of process.
Extradition Act 2003
The Extradition Act 2003 entered force on 1st January 2004 (paragraph 2 Extradition Act 2003 (Commencement and Savings) Order 2003 (SI 2003 No. 3103)). The text of the Act can be accessed on-line at http://www.legislation.hmso.gov.uk/acts/acts2003/20030041.htm. The explanatory notes can be accessed on-line at http://www.opsi.gov.uk/ACTS/en2003/2003en41.htm.
All import and export extradition requests submitted/received after midnight on 31st December 2003 are regulated by the Extradition Act 2003 ("the Act"): Extradition Act 2003 (Commencement and Savings) Order 2003.
Export requests received by the Secretary of State on/before this date will continue to be regulated by the Extradition Act 1989, as will any post-extradition requests relating to a person extradited to or from the UK on/before that date (paragraph 3 Extradition Act 2003 (Commencement and Savings) Order 2003). Import requests submitted before this date will be made pursuant to the Royal Prerogative and dealt with under the applicable treaty/convention. Special Crime Division can provide detailed advice regarding transitional provisions.
The Extradition Act 2003 is divided into 5 parts as follows:
- Part 1 – extradition to category 1 territories. This means export extradition to all EU countries operating the European Arrest Warrant System which have been designated as category 1 territories. The designation orders for Category 1 territories are:
- The Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 2003 No. 3333);
- The Extradition Act 2003 (Amendment to Designations) Order 2004 (SI 2004 No. 1898);
- The Extradition Act 2003 (Amendment to Designations) Order 2005 (SI 2005 No. 365);
- The Extradition Act 2003 (Amendment to Designations)(No. 2) Order 2005 (SI 2005 No. 2036).
- The Extradition Act 2003 (Amendment to Designations) Order 2006 (SI 2006 No. 3451).
- Part 2 – extradition to category 2 territories. This means export extradition to all other countries with whom the UK has extradition arrangements. The designation orders for category 2 territories are:
- The Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (SI 2003 No. 3334);
- The Extradition Act 2003 (Amendment to Designations) Order 2004 (SI 2004 No. 1898);
- The Extradition Act 2003 (Amendment to Designations) Order 2005 (SI 2005 No. 365);
- The Extradition Act 2003 (Amendment to Designations)(No. 2) Order 2005 (SI 2005 No. 2036).
- Part 3 - extradition to the United Kingdom. In fact, the majority of the provisions relate to Part 3 warrants, that is, import EAWs.
- Part 4 – police powers in relation to export extradition requests.
- Part 5 – miscellaneous and general.
The full list of category 1 territories is set out at Appendix 1.
The full list of category 2 territories is set out at Appendix 2.
Police and Justice Act 2006
The Extradition Act 2003 has been substantially amended by Schedule 13 of the Police and Justice Act. With the exception of non-effective provisions relating to forum (s. 19B and 83A), these entered force on 15th January 2007.
Export Extradition
Introduction
This guidance is confined to the arrest of persons after implementation of the Extradition Act 2003.
All CPS export extradition is dealt with at CPS Headquarters by Special Crime Division.
This guidance concerns persons arrested in England or Wales only – separate provisions apply to persons arrested in Scotland or Northern Ireland. CPS is not involved in those cases.
General: Custody/Bail
Remand in custody: s. 197
A remand in custody under the Act is to be treated in the same way as a remand in custody in ordinary domestic criminal proceedings: s. 197(1) and (2).
Bail: s. 198
s. 198 extends the provisions of the Bail Act 1976 to cover export extradition proceedings under the Extradition Act 2003.
The general right to bail is extended to export extradition proceedings in respect of accusation cases under the Act: s. 198(4).
Application to judge in chambers by person refused bail
Persons refused bail in extradition proceedings may apply for bail to a High Court Judge sitting in chambers under RSC Order 79.9.
Reconsideration of decision to grant bail
Where bail is granted by a constable / Magistrates' Court, the requesting authority/territory may apply for the decision to be re-considered, but only the basis of information which was not available to the person who granted bail (s. 198(6)). Where the decision to grant bail is made by a constable, reconsideration will be by the Magistrates' Court. Where the Magistrates' Court makes the decision, reconsideration will be by that court. Applications must be made in writing in accordance with r. 98B Magistrates' Courts Rules 1981.
Appeal against grant of bail: s. 200
Where a Magistrate grants bail to a person who is the subject of extradition proceedings, the requesting authority/territory may appeal the decision to the High Court: s. 1(1A) Bail (Amendment) Act 1993. This right only applies to certain offences and requires the service of oral notice on the magistrates' court granting bail at the conclusion of the proceedings in which bail has been granted with written notice in the prescribed form within 2 hours thereafter.
Part 1 Cases
Designated Central Authority
The Serious Organised Crime Agency (SOCA) (which took over the extradition functions formerly exercised by National Criminal Intelligence Service (NCIS) on 1st April 2006) is the designated authority for the receipt of Part 1 warrants (export EAWs) (paragraph 2 The Extradition Act 2003 (Part 1 Designated Authorities) Order 2003 (SI 2003 No. 3109) as amended by s. 39 of The Serious Organised Crime and Police Act 2005 (Consequential and Supplementary Amendments to Secondary Legislation) Order 2006).
Certification
When it receives a Part 1 warrant, SOCA must decide whether to certify the warrant concerned. The criteria for certification are set out in s. 2 of the Act. To qualify for certification, the warrant must have been issued by a judicial authority (s. 2(2)), which SOCA believes to have the function of issuing arrest warrants in the territory concerned and contain a statement of purpose and specified information.
The meaning of these phrases is as follows:
Judicial authority SOCA will decide whether the authority concerned is competent to issue arrest warrants on the basis of the notification given by that country to the European Commission as to who are its competent authorities for these purposes.
Statement of purpose (accused persons) In the case of an accused person the required statement must be to the effect that the subject of the warrant is accused of an offence in the requesting territory and the warrant is issued for the purpose of securing his return for prosecution for the offence mentioned in the warrant: s. 2(3).
Statement of purpose (convicted persons) In the case of a convicted person the statement must be to the effect that the subject of the warrant has been convicted by a court in the requesting Category 1 territory of an offence specified in the warrant and the warrant is issued to secure his return for sentence or the carrying out of a sentence of imprisonment which has already been imposed.
Information (accused persons) The warrant must contain:
- Particulars of identity;
- Details of any other warrant issued in the requesting territory for that person;
- Particulars of the facts;
- Particulars of the relevant foreign law under which the conduct is alleged to constitute an offence;
- Details of any sentence which may be imposed in the event of conviction.
Information (convicted persons) The warrant must contain:
- Particulars of identity;
- Details of the conviction for which return is sought;
- Details of any other warrant issued in the requesting territory for that person;
- Details of any sentence which may be imposed (if the person has not yet been sentenced);
- Details of sentence (if person has been sentenced).
Certification allows the warrant to be executed by a constable without the need to obtain a UK warrant.
SOCA co-ordinates the arrest of persons wanted for extradition and the arrangements for their production before Bow Street Magistrates Court.
SOCA facilitates communications between CPS and the issuing judicial authority.
SOCA arranges the surrender of persons whose extradition has been ordered by the courts.
Role of Metropolitan Police Extradition and International Assistance Unit (Extradition Squad)
The Extradition Squad is responsible for carrying out the arrest of persons sought under Part 1 warrants and who are located in the Metropolitan Police area. It will also carry out any related searches/seizures. Outside the Metropolitan area, arrests and searches will be carried out either by officers of the Extradition Squad itself or local officers acting with the support and assistance of the Extradition Squad.
Role of CPS
In Part 1 export extradition cases where the subject of the extradition proceedings has been arrested in England or Wales, CPS provides representation for the requesting judicial authority in proceedings before the English courts. It does so by virtue of s.191 of the Extradition Act 2003 and the Attorney General's assignment of 10th December 1996 (Appendix 3). The role of CPS was considered in R -v- Director of Public Prosecutions ex parte Thom [1996] Crim. L.R. 116 and more recently in Government of Germany –v- Kleinschmidt [2005] EWHC 1373 (Admin).
All export extradition cases are dealt with at first instance in City of Westminster Magistrates' Court by Special Crime Division of CPS HQ.
Arrest
There are 2 ways in which a person can be arrested and brought before a court-
- Arrest pursuant to a certified Part 1 warrant (ss. 3-4)
- Provisional Arrest (ss.5-6)
Once a Part 1 warrant has been certified it may be executed by a constable. The person must be given a copy of the warrant as soon as practicable after arrest (s. 4(2)). Failure to comply means the Judge may grant an application by the person for his discharge (s. 4(4)). The subject of the warrant must then be produced at City of Westminster Magistrates' Court as soon as practicable along with the certified Part 1 warrant.
A constable can arrest a person without warrant if he has grounds for believing that a Part 1 warrant has been/will be issued in respect of that person by an authority in the requesting territory which has the function of issuing such warrants. The person must be given a copy of the warrant as soon as practicable after arrest (s. 6(5)). Failure to comply means the Judge may grant an application by the person for his discharge (s. 6(7)). The subject of the warrant must then be produced at City of Westminster Magistrates' Court in London within 48 hours of arrest along with the certificate and Part 1 warrant.
Initial Hearing: s7-8
At the Initial Hearing after arrest the District Judge must decide the following issues:
- Is the EAW a Part 1 warrant within the meaning of s. 2 of the Act?
- Identity (s. 7(2)-(5))
- Extradition Hearing (s. 8(1)(a))
- Contents of the warrant (s. 8(1)(b))
- Consent to extradition (s. 8(1)(c))
- Remand (s. 8(1)(d))
Failure to comply with the requirements of Part 2 means that the warrant cannot amount to a Part 1 warrant for the purposes of the Act: Office of the King's Prosecutor-v-Cando-Armas [2005] UKHL 67; Dabas-v-High Court of Justice, Madrid [2007] UKHL 6.
The District Judge must decide whether the person before the court is, on a balance of probabilities, the subject of the warrant. If the Judge is not so satisfied he must discharge the person.
If the Judge is satisfied on the question of identity he must fix a date for the start of the Extradition Hearing. This must be within 21 days starting with the date of arrest.
The Judge must inform the person of the contents of the warrant. In practice the police will ensure that the person is served with a copy of the warrant either at the time of, or shortly after, arrest.
The Judge must inform the person of the possibility of consenting to return under s.46.
Finally, the Judge must decide whether to remand the person in bail or in custody.
It should be noted that a Prosecutor from/counsel instructed by Special Crime Division will appear at the Initial Hearing on behalf of the judicial authority which issued the Part 1 warrant.
Extradition Hearing s10-21
At the Extradition Hearing the District Judge must decide on the following matters:
- Is the offence an extradition offence (s. 10(2))?
- Do any of the bars to extradition apply (ss. 11-19)?
- Convictions in absentia (s.20)
- the conviction was in absentia and
- the person did not deliberately absent himself and
- he would not upon return be entitled to a retrial or a review amounting to a retrial.
- Compatibility with ECHR rights (s. 21)
For detailed consideration of this issue see Appendix 4.
These are set out at Appendix 5. If so, the Judge must discharge the person.
The Judge must discharge the fugitive if
Would the person's extradition be compatible with his rights under the European Convention on Human Rights? If not, the Judge must discharge the person. If it would be compatible, the Judge is obliged to order the person's extradition.
Person charged with UK cffence: s22
If, during the Extradition Hearing, the Judge is informed that the person has been charged with an offence in the UK, he must adjourn the Extradition Hearing until the charge is disposed of /withdrawn /discontinued (s. 22(2)).
If the UK charge results in a sentence of imprisonment, the Judge may adjourn the Extradition Hearing until the sentence has been served (s. 22(3)).
Person serving sentence in UK: s23
If during the Extradition Hearing the Judge is informed that the person is serving a sentence of imprisonment in the UK, he may adjourn the hearing until the UK sentence has been served: s. 23(2).
Extradition request: s24
If, during the Extradition Hearing the Judge is informed that -
- the Home Secretary has certified a Part 2 request and
- that request has not been disposed of, and
- the Home Secretary has made an order under s. 179(2) deferring further proceedings on the Part 1 EAW before the Judge
then the Judge must remand the person in custody/on bail: s. 24(1) and (2).
Note: Detailed rules as to when a request is deemed to be "disposed of" are set out at s. 213.
Physical or mental condition: s25
If, during the Extradition Hearing it appears to the Judge that it would be unjust or oppressive to extradite the person by virtue of his physical/mental condition, he must either -
- order his discharge: s. 25(3)(a), or
- adjourn the hearing until it appears to him that the person's physical/mental condition is such that it would no longer be unjust/oppressive to extradite him: s. 25(3)(b).
Adjournment of Extradition Hearing
The Appropriate Judge may, upon application by either party before the date fixed, postpone the date fixed for the commencement of the Extradition Hearing, if he considers it in the interests of justice to do so (s. 8(5)).
Once the Extradition Hearing has commenced the Judge has the same powers as he would have in respect of a domestic summary trial (s. 9(1)). These include power to adjourn.
If the Judge does grant an adjournment, he must remand the person in custody or on bail: s. 9(4).
Where the person is remanded in custody, the Appropriate Judge may later grant him bail: s. 9(5).
Appeals: general: s34
s. 34 provides that the Judge's decisions under Part 1 of the Act may only be questioned by means of one of the statutory appeals set out in Part 1.
All appeals in export extradition cases are dealt with in the High Court by the Administrative Court.
Appeal against extradition order: s26
An appeal may be brought by the person against an order for his extradition: s. 26(1).
The appeal may be on a question of law/fact: s. 26(3).
He must give notice of his appeal in accordance with rules of court within 7 days of the order for his extradition: s. 26(4).
Court's powers on appeal under s26: s27
The Court may allow or dismiss the appeal: s. 27(1).
It may only allow the appeal if the conditions in subsections (3) or (4) are met: s. 27(2).
The conditions in s. 27(3) are-
- the Judge ought to have decided a question at the Extradition Hearing differently and
- had he done so as he ought to have done, then he would have been required to order the person's discharge.
The conditions in s. 27(4) are-
- an issue/evidence is raised/available which was not raised/available at the Extradition Hearing;
- the issue/evidence is such that had it been raised/available at the extradition hearing it would have resulted in the Judge deciding a question before him differently; and
- as a result the Judge would have been required to order the person's discharge.
Where the Court allows the appeal it must order the person's discharge and quash the Judge's original extradition order: s. 27(5).
Appeal against discharge at Extradition Hearing: s28
The authority which issued the Part 1 warrant may appeal to the High Court against an order for the person's discharge: s. 28(1).
The appeal may be brought on a question of law/fact: s. 28(4).
The authority must gives notice in accordance with rules of court within 7 days, starting with day on which discharge was ordered: s. 28(5).
Court's powers on appeal under s28: s29
The Court may allow or dismiss the appeal: s. 29(1).
It may only allow the appeal if the conditions in subsections (3) or (4) are met.
The conditions in s. 29(3) are -
- the Judge ought to have decided a question at the Extradition Hearing differently and
- had he done so as he ought to have done, then he would not have been required to order the person's discharge.
The conditions in s. 29(4) are –
- an issue/evidence is raised/available which was not raised/available at the Extradition Hearing;
- the issue/evidence is such that had it been raised/available at the extradition hearing it would have resulted in the Judge deciding a question before him differently and
- as a result the Judge would not have been required to order the person's discharge.
If the Court allows the appeal it must quash the discharge order and remit the case to the Judge with a direction to proceed as he would have been required to proceed had he decided the relevant question differently at the Extradition Hearing: s. 29(5).
Where the Court allows the appeal it must remand the person in custody/on bail: s. 29(7).
Detention pending conclusion of appeal under s28: s30
Where the appeal is brought by the requesting authority against a decision to discharge the person, the Judge must remand the person in custody or on bail pending the appeal but only if notice of intention to appeal is given immediately after the decision to discharge: s. 30(1) and (2).
s. 30(4) makes detailed provision as to when an appeal ceases to be "pending" for these purposes.
Appeal to High Court: time limit for start of hearing: s31
Rules of court are required to prescribe the period within which the High Court must begin to hear an appeal under ss. 26 or 28: s 31(1).
Under Part 52 Practice Direction, appeals must be commenced within 40 days of arrest.
The High Court can extend this period if the interests of justice require it to do so: s. 31(4). It can exercise this power "retrospectively" i.e. after the expiry of the 40 period.
If the appeal is not commenced within the period required by s. 31 then s. 31 provides -
- if the appeal is under s. 26
- it must be taken to have been allowed by the High Court;
- the person must be taken to have been discharged, and
- the Judge's original extradition order must be taken to have been quashed.
- if the appeal is under s. 28 it must be taken to have been dismissed by the High Court.
Appeals to the House of Lords: s32
It is open to whichever party is unsuccessful at the High Court on a s. 26 or s. 28 appeal to appeal to the House of Lords: s. 32(1) and (2).
An appeal to the House of Lords may only be made with the leave of the High Court or the House of Lords: s. 32(3).
s. 32(4) provides that leave must not be granted unless –
- the High Court has certified that there is a point of law of general public importance involved in the decision, and
- it appears to the court (i.e. High Court or House of Lords) dealing with the leave application that the point is one which ought to be considered by the House of Lords.
Leave applications to the High Court must be made within 14 days of the decision on the appeal: s. 32(5).
Leave applications to the House of Lords must be made within 14 days starting on the day the High Court refuses leave: s. 32(6).
Appeals to the House of Lords must be brought within 28 days starting with the day on which leave is granted: s. 32(7).
Failure to comply with the 28-day period in s. 32(7) means that the appeal must be taken to have been brought and dismissed by the House of Lords immediately after the 28-day period: s. 32(8).
The High Court is empowered to grant bail to a person appealing to the House of Lords or seeking leave to do so: s. 32(10).
Powers of House of Lords on Appeal under s32: s33
Where the appeal is brought by the person, the House of Lords may either
- Allow the appeal, in which case it must order the person's discharge and quash the extradition order (if the appeal was against a decision of the High Court to dismiss an appeal under s. 26): s. 33(1)-(3); or
- Dismiss the appeal: s. 32(1)(b).
Where the appeal is brought by the issuing authority against the decision of the High Court to allow the appeal of the person under s. 26 (i.e. against an order for his extradition), the House of Lords may either –
- Allow the appeal, quash the discharge order of the High Court and order the person's extradition to the category 1 territory where the Part 1 warrant was issued: s. 33(4) and (5); or
- Dismiss the appeal: s. 32(1)(b).
Where the appeal is brought by the issuing authority against the decision of the High Court to uphold the District Judge's order discharging the fugitive, the House of Lords either -
- Allow the appeal and either quash the discharge order and order the person's extradition(s. 32(7)) or remit the case to the Judge with a direction to proceed as he would have been required had he decided the relevant question differently (s. 32(8); or
- Dismiss the appeal: s. 32(1)(b).
Where the House of Lords orders extradition or remits the case to the Judge, it must remand the person in custody/on bail: s. 32(10).
Detention pending conclusion of certain appeals under s32: s32A
Where the High Court orders the person's discharge and immediately afterwards the requesting authority informs the Court of its intention to appeal to the house of Lords under s. 32, the High Court must remand the person in custody/on bail pending the appeal.
s. 32(4) makes detailed provision as to when an appeal ceases to be pending for these purposes.
Extradition where no appeal: s35
Where there is no appeal, the person must be extradited to the requesting category 1 territory within 10 days of either -
- the expiry of the 7-day notice period under s. 26(4): s. 35(4)(a), or
- such later date as the Judge and the requesting authority may agree: s. 35(4)(b).
If he has not been extradited within the relevant period, the person may apply to be discharged. The Judge is obliged to order discharge unless reasonable cause can be shown for the delay: s. 35(5).
Extradition following appeal: s36
Where the person makes an unsuccessful appeal under s. 26 against an order for his extradition, he must be extradited to the category 1 territory concerned within 10 days starting -
- on the day the High Court's decision became final: s. 36(3)(a) or
- the appeal proceedings were discontinued: s. 36(3)(a), or
- any later date agreed between the relevant court and the issuing authority: s. 36(3)(b).
s. 36(5) makes detailed provision as to when the High Court's decision on the appeal becomes final for these purposes.
s. 36(7) provides that the House of Lords' decision on the appeal becomes final when it is made.
Where the person is not extradited within the requisite period, he may apply to the Judge who must discharge him unless reasonable cause is shown for the delay in returning him: s. 36(8).
Undertakings in relation to person serving sentence in UK: s37
If the Judge makes an Extradition Order in respect of a serving UK prisoner who is either in custody or on licence he may make the order subject to a condition that extradition may not take place unless the requesting territory provides an undertaking in terms specified by the Judge: s. 37(1) and (3).
These may include terms that -
- the person be kept in custody during the proceedings in the foreign state: s. 37(4)(a);
- the person be returned at the conclusion of those proceedings to complete the outstanding balance of his/her UK sentence: s. 37(4)(b) (4A) and (5).
Where the Judge exercises his power to require an undertaking but it is not received within 21 days, starting on the day on which the Judge makes the order, then the Judge must, on the person's application, order the person's discharge: s. 37(7).
If, however the required undertaking is received, then -
- if it is a case where there is no appeal, the person must be extradited within 10 days starting on the day the Judge receives the undertaking, provided that that is later than the period mention in s. 35(4)(a): s. 37(8)(a).
- if it is a case involving an appeal, the person must be extradited within 10 days of the appeal decision becoming final, or (if later) the day on which the Judge receives the undertaking: s. 37(8)b).
s. 197A provides that where the extradition of a serving prisoner is ordered, the order is sufficient authority for him to be removed from the institution where he is serving his sentence.
Return of person to serve remainder of sentence: s59
When following his extradition to a category 1 territory, the person is returned to the UK in order to serve the balance of his sentence and he is not entitled to release from detention, the provisions of s. 59 apply: s. 59(1).
These include the following:
- Following his return to the UK, he is liable to be detained in pursuance of his sentence: s. 59(2).
- If at large he must be treated as being unlawfully at large: s. 59(3).
- If he was convicted of the foreign offence for which he was temporarily surrendered, time served in the foreign jurisdiction does not count towards his UK sentence: s. 59(4).
- If he was not convicted of the foreign offence, then time served in the foreign jurisdiction during the period of his temporary surrender will count towards his UK sentence: s. 59(5) and (6).
Asylum claim: ss39-40
If the person makes an asylum claim at any time between the certification of the Part 1 warrant and his being extradited pursuant to that warrant, he must not be extradited until his asylum claim has been finally determined by the Secretary of State: s. 39(1)-(3).
Detailed provision as to when the asylum claim is deemed to have been finally determined is made in subsections (5)-(8).
The above rule does not apply if the Secretary of State issues a certificate under s. 40 that the conditions in subsection (2) or (3) are met.
The conditions in s. 40(2) are –
- The requesting category 1 territory has accepted that under standing arrangements (i.e. arrangements in force between it and the UK for determining which State is responsible for considering asylum applications), it is the responsible State in relation to the person's asylum claim;
- The Secretary of State is of the opinion that the person is not a national of the requesting category 1 territory.
The conditions in s. 40(3) are –
- The person is not a national/citizen of the requesting category 1 territory;
- The person's life and liberty would not be threatened in the requesting category 1 territory by reason of his race, religion, nationality, political opinion or membership of a particular social group;
- The government of the requesting category 1 territory would not send the person to another country other than in accordance with the Refugee Convention.
Withdrawal of warrant: ss41-43
The applicable provisions of the Act depend on the stage which proceedings have reached and are as follows:
Withdrawal after arrest and before extradition: s. 41
The Judge must order the person's discharge if, at any time between when the person first appears before him and extradition/discharge, he is informed by SOCA that the warrant has been withdrawn.
Withdrawal while appeal to High Court pending: s. 42
If, at any time between the giving of notice of appeal and the conclusion/discontinuance of the appeal proceedings, the High Court is informed by SOCA that the warrant has been withdrawn, it must either
- discharge the person and quash the original extradition order (if the appeal is by the person against the extradition order under s. 26): s. 42(3)(a) or
- dismiss the appeal (if the appeal is by the requesting authority against discharge under s. 28): s. 42(3)(b).
Withdrawal of warrant while appeal to House of Lords pending: s. 43
If, at any time between the grant of leave and the conclusion/discontinuance of the appeal proceedings, the House of Lords is informed by the designated authority that the warrant has been withdrawn, it must either
- discharge the person and quash the original extradition order (if the appeal is by the person against the High Court's decision to refuse his appeal under s. 26): s. 43(3)(a) or
- dismiss the appeal (if the appeal is by the requesting authority): s. 43(3)(b).
Competing Part 1 warrants: s44
If, at any time between the person's first appearance before the Judge following arrest on a Part 1 warrant and his extradition/discharge, the Judge is informed of the existence of another Part 1 warrant in respect of the same person which has not been disposed of, the Judge must choose which of the two competing warrants will prevail: s. 44(1)-(4).
s. 44(7) provides that in making his decision, the Judge must consider the following criteria in particular –
- the relative seriousness of the offences concerned;
- the place where each offence was committed/alleged to have been committed;
- the date of issue of each warrant;
- whether it is an accusation or conviction case,
The Judge may (s. 44(4)) -
- (if neither request has been disposed of) order proceedings on one of the requests to be deferred until proceedings on the other one have been disposed of; or
- (if the person's extradition has already been ordered on the first request) order extradition to be deferred until the second warrant has been disposed of.
Competing Part 1 warrant and Part 2 request
Consent to extradition: ss45-47
A person may consent to his or her surrender to a category 1 territory provided that -
- he/she is legally represented at the time of giving consent: s. 45(5),
- he/she gives his/her consent in front of an Appropriate Judge (usually the District Judge) (s. 45(4)(a)), and
- the consent is recorded in writing (s. 45(4)(b).
Consent is irrevocable: s. 45(4)(c).
The effect of consent is that the person is taken to have waived any right he would otherwise have had not to be dealt with in the requesting territory for an offence committed before his extradition: s. 45(3).
Where consent is given under s. 45, the Judge must remand the person in custody or on bail (s. 46(2)) and must within 10 days of the date of consent make an order for his/her extradition (s. 46(6)).
Extradition must take place within 10 days starting with the day of the order for extradition or within 10 days starting on any later date agreed by the Judge and the requesting authority: s. 47(3).
Other Part 1 warrant issued following consent: ss48-50
If, after the person gives consent under s. 45 to his extradition to a category 1 territory and before the Judge makes the extradition order, the Judge is informed that another Part 1 warrant has been issued in respect of the same person, then the requirement under s. 46(6) to effect his extradition within 10 days does not apply and the Judge may either –
- order the extradition to which the person has consented: s. 48(3)(a), or
- order further proceedings on that warrant to be deferred until the other warrant has been disposed of: s. 48(3)(b).
In reaching this decision, the Judge is required by s. 48(5) to take particular account of the following factors:
- the relative seriousness of the offences concerned;
- the place where each was/was allegedly committed;
- the date of issue of each Part 1 warrant;
- whether the person is accused/is alleged to be unlawfully at large after conviction.
If the Judge makes an order under s. 48(3)(a) (i.e. that extradition should go ahead in accordance with the person's consent), then he must be extradited within 10 days starting on the day the order is made/such later date as agreed between the Judge and the requesting authority: s. 49(1)-(3). Failure to extradite within this period, means that the Judge must, on the person's application, order his discharge, unless reasonable cause is shown for the delay in returning him: s. 49(4).
If the Judge the Judge makes an order under s. 48(3)(b) (i.e. to defer proceedings on the Part 1 warrant in respect of which the person has consented to extradition), then he must remand the person in custody/on bail: s.50(1) and (2). If, subsequently resumption of the proceedings is ordered under s. 180, the 10 day-period for return runs from the date on which resumption is ordered: s. 50(4).
Part 2 extradition request certified following consent on Part 1 warrant: s51
Where the person has consented to return in respect of a Part 1 warrant under s. 45 and before the Judge orders his extradition on that warrant, the Judge is informed that a s. 70 certificate has been issued in respect of a request for his extradition under Part 2, the Judge must not order extradition in pursuance of that consent until he is informed what order the Secretary of State has made under s. 179(2): s. 51(3).
If the Secretary of State has ordered that proceedings on the warrant be deferred until the Part 2 request has been disposed of, then the judge must remand the person in custody/on bail: s. 51(5).
If the Secretary of State order's such deferral but then makes an order for proceedings on the Part 1 warrant to be resumed, the 10-day period for return under s. 46(6) runs from the day on which the order for resumption is made: s. 51(6).
If the Secretary of State orders deferral of the proceedings in respect of the Part 2 request, then the 10 day period for return on the Part 1 warrant before the Judge (i.e. pursuant to the consent) runs from the date upon which the Judge is informed of the Secretary of State's order: s. 51(7).
Consent to return: undertakings: s52
s. 52 makes provision for undertakings required by the Judge in a case where the person has consented to return, parallel to those in s. 37 (see above).
Request post-extradition to other offence being dealt with: ss54-55
If, following a person's extradition to a category 1 territory, a request is received for consent to his being dealt with in that territory for another offence, other than the one for which he was extradited, the following rules apply –
- Before it can be considered, the request must be certified by SOCA. SOCA may certify the request if it believes it was made by a judicial authority which has the function of making such requests: s. 54(2).
- The Judge must serve notice on the person that he has received the request, unless satisfied that it would be impracticable to do so: s. 54(4).
- The consent hearing must begin within 21 days of the request for consent being received by SOCA: s. 54(5). This period may be extended if the Judge believes the interests of justice require it: s. 54(6).
At the hearing the Judge must decide the following issues –
- Whether consent is in fact required: s. 55(1). In deciding this issue, the Judge must refer to what appears to him to be the law of the requesting territory/ arrangements between the requesting territory and the UK: s. 55(10). Consent will not be required if the person was either given an opportunity to leave the requesting territory and has not done so within 45 days, or did so and then returned there: s. 55(8).
- If so, whether the offence concerned is an extradition offence (see above): s. 55(3). If not, the Judge must refuse consent: s. 55(4).
- Assuming the offence is an extradition offence, the Judge must then decide whether he would have ordered the person's extradition in respect of the offence for which consent is now sought had the person been located in the UK: s. 55(5). If he concludes that he would have ordered extradition, the Judge must give consent: s. 55(6).
Request for consent to onward extradition to category 1 territory: ss56-57
If, following the person's extradition to a category 1 territory, a request is received for consent to his extradition to another category 1 territory to be dealt with for an offence, the following rules apply –
- Before it can be considered, the request must be certified by SOCA. SOCA may certify the request if it believes it was made by a judicial authority which has the function of making such requests: s. 56(2).
- The District Judge must serve notice on the person that he has received the request, unless satisfied that it would be impracticable to do so: s. 56(4).
- The consent hearing must begin within 21 days of the request for consent being received by SOCA: s. 56(5). This period may be extended if the Judge believes it would be in the interests of justice to do so: s. 56(6). He may do so "retrospectively" (i.e. after the end of the 21-day period): s. 56(7). If the consent hearing does not begin within this period and the period is not extended, the Judge must refuse consent: s. 56(8)
At the hearing the Judge must decide the following issues –
- Whether consent is in fact required: s. 57(1). In deciding this issue, the Judge must refer to what appears to him to be the law of the requesting territory/ arrangements between the requesting territory and the UK: s. 57(10). Consent will not be required if the person was either given an opportunity to leave the requesting territory and has not done so within 45 days, or did so and then returned there: s. 57(8).
- If so, whether the offence concerned is an extradition offence (see above): s. 57(3). If not, the Judge must refuse consent: s. 57(4).
- Assuming the offence is an extradition offence, the Judge must then decide whether he would have ordered the person's extradition in respect of the offence for which consent is now sought had the person been located in the UK: s. 57(5). If he concludes that he would have ordered extradition, the Judge is obliged to give consent: s. 57(6). If not, then he must refuse consent: s. 57(7).
Request for consent to onward extradition to category 2 Territory: s58
If, following the person's extradition to a category 1 territory, a request is received for consent to his extradition to a Category 2 territory to be dealt with for an offence, the following rules apply –
- Before it can be considered, the request must be certified by the Secretary of State. SOCA may certify the request if it believes it was made by a judicial authority which has the function of making such requests: s. 58(2).
- It is the Secretary of State who decides whether to grant consent.
- The Secretary of State must serve notice on the person that he has received the request, unless satisfied that it would be impracticable to do so: s. 58(4).
The Secretary of State must decide the following issues –
- Whether the offence concerned is an extradition offence (see above): s. 58(5). If not, he must refuse consent s. 58(6).
- Assuming the offence is an extradition offence, the Secretary of State must then decide whether the Judge would have sent the case to him for his decision on extradition in respect of the offence for which consent is now sought had the person been located in the UK: s. 58(7). If not, the Secretary of State must refuse consent: s. 58(8).
- If he concludes that the Judge would have sent the case to him, the Home Secretary must then consider whether, had the case been sent to him, he would have been prohibited from ordering extradition (under ss. 94, 95 or 96). If so, the Secretary of State must refuse consent: s. 58(11).
- If the Secretary of State concludes that he would not have been prohibited from ordering extradition, he may give consent: s. 58(10).
Costs: ss60-62
These provisions empower the relevant court to make a "just and reasonable" order for costs in favour of the successful party.
Costs where extradition is ordered
s. 60 applies where extradition is ordered in the following scenarios:
- Where an order for extradition is made under Part 1: s. 60(1)(a);
- Where the High Court/House of Lords dismisses a person's appeal against an order for his extradition under s. 26: s. 60(1)(b);
- Where the House of Lords dismisses an application by the person for leave to appeal to it under s. 32: s. 60(1)(c);
- Where the House of Lords dismisses an appeal by the person under s. 32: s. 60(1)(d).
An order for costs under s. 60 may be made against the person by -
- The Appropriate Judge under s. 60(1)(a): s. 60(2);
- The court dismissing the leave application or appeal in all other cases: s. 60(3).
The amount of the order must be such as the Appropriate Judge or court considers just and reasonable: s. 60(2) and (3).
The costs order must specify -
- The amount: s. 60(4)(a), and
- The payee: s. 60(4)(b).
Costs where discharge is ordered
s. 61 applies where the person is discharged in the following scenarios:
- Where the person is discharged under Part 1: s. 61(1)(a);
- Where the person is taken to be discharged under Part 1: s. 61(1)(b);
- Where the High Court dismisses and appeal by the requesting authority under s. 28 against discharge by the Appropriate Judge: s. 61(1)(c);
- Where the High Court/House of Lords dismisses an application by the issuing authority for leave to appeal to the House of Lords under s. 32: s. 61(d);
- Where the House of Lords dismisses an appeal by the issuing authority under s. 32: s. 61(1)(e).
Where the person's discharge is ordered, an order for costs out of public funds under s. 61 may be made in favour of the person by:
- The Appropriate Judge if he makes the discharge order: s. 61(2)(a);
- The High Court if it makes the discharge order: s. 61(2)(b);
- The House of Lords if it makes the discharge order: s. 61(2)(c).
Where the person is taken to be discharged, an order for costs out of public funds under s. 61 may be made in favour of the person by the Appropriate Judge: s. 61(3).
In all the other cases the order for costs out of public funds under s. 61 may be made in favour of the person by the court which dismissed the leave application or appeal: s. 61(4).
The amount of the order is such as the judge/court making it considers reasonably sufficient to compensate the person for expenses properly incurred by him in the proceedings: s. 61(6). It must be determined in accordance with regulations made by the Lord Chancellor: s. 61(8)(b) unless it falls within s. 61(7).
s. 61(7) allows the judge/court to reduce the costs order where he/it considers that it would be inappropriate to award the full amount.
Persons serving sentences outside territory where convicted: s63
s. 63 contains a series of amendments to various sections in Part 1 to allow the procedure to be used where the person was serving a custodial sentence in the requesting territory in respect of an offence committed elsewhere having been returned there pursuant to repatriation arrangements.
Appropriate Judge - Part 1 definition: s67
For England and Wales, the Appropriate Judge is defined as a District Judge (Magistrates' Courts) who has been designated for the purposes of extradition by the Lord Chancellor: s. 67(1).
For the avoidance of doubt, s. 67(3A) makes it clear that where the Act uses the expression "the judge" more than once in a particular section, or following a reference to "the Appropriate Judge", this does not of itself mean that the same individual is being referred to.
Extradition Hearing - Part 1 definition: s68
The Extradition hearing is the one at which the Judge decides whether to order a person's extradition to the country in which a Part 1 warrant for him has been issued: s. 68(1).
Unlawfully at large - Part 1 definition: s68A
Because requesting countries often did not understand the concept of being unlawfully at large, they found it difficult to meet the requirements in the original 2003 Act to show that the person sought was not only convicted but also unlawfully at large.
s. 68A supplements amendments which remove the majority of such requirements by providing the following definition for Part 1 where the requirement to show unlawfulness at large is retained (other than for the purposes of ss. 14 (passage of time) and 63 (repatriation cases), namely that a person is unlawfully at large if –
- He is alleged to have been convicted of the offence concerned: s. 68A(1)(a) and
- His extradition is sought in order to sentence him for it/so that he can serve a sentence of imprisonment for it if one has already been imposed: s. 68A(1)(b).
Part 2 Cases
Designated central authority
The Judicial Co-Operation Unit (JCU) at the Home Office is the authority which receives extradition requests from category 2 territories.
Certification
In relation to a request received from a category 2 territory, the Secretary of State, on the advice of JCU, must (subject to exceptions set out in s. 70(2)) certify the request if the request is "valid".
The criteria for validity are set out in s. 70 of the Act. A request is valid within the meaning of the Act if it contains a statement and is "made in the approved way". The meaning of these phrases is as follows:
Statement (accused person)
In the case of an accused person, the statement must be to the effect that -
- The person is accused in the category 2 territory of the commission of the offence specified in the request: s. 70(4)(a) and
- The request is made with a view to his arrest and extradition to the requesting territory for the purpose of being prosecuted for the offence: s. 70(4)(b).
Statement (convicted person)
In the case of a convicted person, the statement must be to the effect that -
- The person has been convicted of an offence specified in the request by a court in the requesting territory for the offence: s. 70(4A)(a), and
- The request is made with a view to his arrest and extradition to the requesting territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment/other form of detention in respect of it: s. 70(4A)(b).
Approved way (British Overseas Territories)
A request from a British Overseas Territory is made in the approved way if it is made by/on behalf of the administrator of the territory (s. 70(5)).
Approved way (Hong Kong)
A request from Hong Kong is made in the approved way if made by/on behalf of the government of the region (s. 70((6)).
Approved way (all other category 2 territories)
A request from any other category 2 territory is made in the approved way if made either -
- By an authority of the territory believed by the Home Secretary to have the function of issuing such requests; or
- By someone recognised by the Home Secretary as a diplomatic/consular representative of the category 2 territory (s. 70(7)).
Content of certificate
The certificate must -
- Certify that the request is made in the approved way: s. 70(8)(a) and
- Identify the Order in Council designating the requesting territory as a category 2 territory: s. 70(8)(b).
Refusal to certify
The Secretary of State may refuse to issue a certificate in respect of a valid request in the following circumstances:
- Where he has power under s. 126 (competing requests) to order deferral of proceedings on the request: s. 70(2)(a).
- Where the subject of the extradition request has been recorded by the Secretary of State as a refugee within the meaning of the Refugee Convention: s. 70(2)(b).
- Where the subject of the request has been granted leave to enter/remain in the UK on the grounds that that it would be a breach of Article 2 or 3 ECHR to remove him to the requesting territory: s. 70(2)(c).
Transmission of certificate to City of Westminster Magistrates' Court
Following certification, the Home Secretary (via the JCU) must send the request and certificate to the Appropriate Judge (at the City of Westminster Magistrates' Court): s. 70(9).
The JCU also facilitates communications between CPS and the requesting territory.
Role of Metropolitan Police Extradition & International Assistance Unit (Extradition Squad)
The Extradition Squad is responsible for carrying out the arrest of persons sought under Part 2 requests.
Where a request for provisional arrest is made (usually via Interpol, but sometimes through diplomatic channels), the Extradition Squad will make the application for the necessary domestic warrant to the City of Westminster Magistrates' Court.
The Extradition Squad is responsible for carrying out any linked searches and seizures and for making the arrangements for surrender where the person's extradition has been ordered.
Role of CPS
In Part 2 export extradition cases where the subject of the extradition proceedings has been arrested in England or Wales, CPS provides advice to and representation for the requesting Category 2 territory in proceedings before the English courts. It does so by virtue of s.191 of the Extradition Act 2003 and the Attorney General's assignment of 10th December 1996 (see Appendix 3). The role of CPS was also considered in R v Director of Public Prosecutions ex parte Thom [1996] Crim. L.R. 116 and more recently in Germany-v-Kleinschmidt [2005] EWHC 1373 (Admin).
All export extradition cases are dealt with at the City of Westminster Magistrates' Court by Special Crime Division of CPS HQ in London.
Arrest
There are 2 ways in which a person whose extradition is requested can be arrested –
- Arrest on an arrest warrant issued under s. 71 following receipt of a certified extradition request from the Home Secretary (see above).
- Provisional arrest (s. 73). The grounds for issuing such a warrant are set out in s. 73.
Issue of arrest warrant following certification
Having received the request and certificate, the Appropriate Judge may issue a warrant for the person's arrest if he has reasonable grounds for believing that:
- The offence for which extradition is sought is an extradition offence: s. 71(2)(a), and
- There is evidence falling within subsection (3): s. 71(2)(b).
- The evidence referred to in subsection (3) is
- In the case of an accused person, such as would justify the issue of a domestic warrant were the person accused of the offence in the Judge's jurisdiction: s. 71(3)(a).
- In the case of a person alleged to be unlawfully at large after conviction of the offence, such as would justify the issue of a domestic arrest warrant for the arrest of a person unlawfully at large after conviction of the offence within the Judge's jurisdiction: s. 71(3)(b).
- He is alleged to have been convicted of the offence concerned: s. 140A(1)(a), and
- His extradition is sought for the purpose of sentencing him for the offence or his serving a sentence of imprisonment/other form of detention for it: s. 140A(1)(b).
For the purposes of s. 71(3)(b) 'unlawfully at large' is defined in s. 140A. A person is unlawfully at large if:
Where the requesting territory has been designated by the Secretary of State, the references in s. 71(2) and (3) to 'evidence' are to be read as 'information': s. 71(4).
A s. 71 warrant may be executed in any part of the UK by -
- Any person to whom it is directed;
- Any constable;
- Any customs officer: s. 71(5)(a) and s. 71(7).
Person arrested under s71: s 72
Where the arrest is pursuant to a s. 71 warrant (i.e. one issued following receipt of a certified request), the following rules apply –
- The person must be given a copy of the warrant as soon as practicable after arrest: s. 72(2). Failure to comply means the Judge may grant an application by the person for his discharge: s. 72(5).
- The person must be brought before the District Judge at City of Westminster Magistrates' Court as soon as practicable after arrest: s. 72(3). Failure to comply means the Judge must grant an application by the person for his discharge: s. 72(6).
First hearing following arrest under s71 on certified warrant
At the first hearing following arrest, the District Judge must –
- Inform the person of the contents of the extradition request: s. 72(7)(a);
- Inform the person of the possibility of and procedure for consenting to return: s. 72(7)(b);
- Fix a date for the start of the Extradition Hearing: s. 75(1). This must be no more than 2 months from the date of first appearance: s. 75(2). If, before the Extradition Hearing is due to start, either party applies to the Judge for a later hearing date, the Judge may grant the application if he believes it to be in the interests of justice to do so: s. 75(3). If the Extradition Hearing fails to start on the date fixed and the person applies to be discharged, the Judge must grant the application and discharge the person: s. 75(4).
- Remand the person in custody/on bail: s. 72(7)(c).
Issue of provisional arrest warrant: s73
A Justice of the Peace may issue a provisional warrant for the arrest of the person if he is satisfied on information in writing and on oath that the person is or is believed to be -
- In the UK: s. 73(1)(a), or
- On his way to the UK: s. 73(1)(b).
if he has reasonable grounds for believing that:
- The offence of which the person is accused/convicted is an extradition offence: s. 73(3)(a), and
- There is written evidence falling within subsection (4).
Under subsection (4) the evidence is -
- In the case of an accused person, such as would justify the issue of a domestic warrant were the person accused of the offence in the Judge's jurisdiction: s. 73(4)(a).
- In the case of a person alleged to be unlawfully at large after conviction of the offence, such as would justify the issue of a domestic arrest warrant for the arrest of a person unlawfully at large after conviction of the offence within the Judge's jurisdiction: s. 73(4)(b).
For the purposes of s. 73(4)(b) 'unlawfully at large' is defined in s. 140A. A person is unlawfully at large if:
- He is alleged to have been convicted of the offence concerned: s. 140A(1)(a), and
- His extradition is sought for the purpose of sentencing him for the offence or his serving a sentence of imprisonment/other form of detention for it: s. 140A(1)(b).
Where the requesting territory has been designated by the Secretary of State, the references in s. 73(3) and (4) to 'evidence' are to be read as 'information': s. 73(5).
A s. 73 warrant may be executed in any part of the UK by -
- Any person to whom it is directed;
- Any constable;
- Any customs officer: s. 73(6)(a) and s. 73(8).
Person arrested under a provisional warrant: s74
Where the person is arrested pursuant to a s.73 warrant (i.e. a provisional warrant) the following rules apply –
- The person must be given a copy of the warrant as soon as practicable after arrest: s. 74(2). Failure to comply means the Judge may grant an application by the person for his discharge: s.74(5).
- The person must be brought before an Appropriate Judge at the City of Westminster Magistrates' Court as soon as practicable after arrest: s. 74(3). Failure to comply means the Judge must grant an application by the person for his discharge: s. 74(6).
First Hearing following provisional arrest
At the first hearing following arrest, the Appropriate Judge must –
- Inform the person of the reason for his arrest: s. 74(7)(a);
- Inform the person of the possibility of and procedure for consenting to return: s. 74(7)(b);
- Remand the person in custody/on bail: s. 72(7)(c).
The Judge must order the person's discharge if the following documents are not received in the required period: s. 74(10) –
- The request for extradition: s. 70(9), and
- The Home Secretary's certificate: s. 70(9).
The required period for receipt of these documents is either –
- 45 days starting with the day of arrest, or
- Any longer period permitted by an Order in Council: s. 74(11) (the relevant countries and periods are set out in paragraph 4 Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 as amended and are listed at Appendix 6.
Provided the required documents are received by the Court within the relevant period, the Judge must then fix a date for the start of the Extradition Hearing: s. 76(2). This must be no more than 2 months from the date the court receives the required documents: s. 76(3). If the Extradition Hearing fails to start on the date fixed and the person applies to be discharged, the Judge must grant the application and discharge the person: s. 76(5).
Adjournment of the Extradition Hearing
If before the date fixed for the start of the Extradition Hearing, either party applies to the Judge for a later hearing date, the Judge may grant the application if he believes it to be in the interests of justice to do so: s. 76(4).
Once the Extradition Hearing has commenced the Judge has the same powers as he would have in respect of a domestic summary trial: s. 77(1) – see below. These include power to adjourn: s. 77(4).
If the Judge does grant an adjournment, he must remand the person in custody or on bail: s. 77(4).
Extradition Hearing: ss77-87
Once the Extradition Hearing has commenced the Judge has the same powers as he would have in respect of a domestic summary trial: s. 77(1).
At the Extradition Hearing the District Judge must decide the following matters in the order set out below:
Documentation: s. 78(2)
- The request: s. 78(2)(a);
- The certificate: s. 78(2)(a);
- Particulars of identity of the person whose extradition is requested: s. 78(2)(b);
- Particulars of the offence specified in the request: s. 78(2)(c);
- In the case of an accused person, a warrant for his arrest issued in the requesting category 2 territory: s. 78(2)(d);
- In the case of someone alleged to be unlawfully at large after conviction, a certificate of conviction and (if sentenced) of sentence: s. 78(2)(e). (The definition of 'unlawfully at large' is set out at s. 140A(1) see above).
Identity: s. 78(4)(a)
Extradition Offence: s. 78(4)(b)
Service of Copy Documents on Person: s. 78(4)(c)
Bars to Extradition: s. 79(1)
Persons Not Convicted: s. 84
- the statement is made by the person to a police officer or other person charged with the duty of investigating offences or charging offenders: s. 84(2)(a), and
- direct oral evidence by the person of the fact would be admissible: s. 84(2)(b).
Conviction Cases: s. 85
- First the Judge must ask whether the conviction in the person's presence/in absentia: s. 85(1).
- If the person was convicted in his presence the Judge moves on to consider whether the person's extradition would be compatible with his rights under the European Convention on Human Rights (see below): s. 85(2).
- Similarly, if the conviction was in absence but the Judge concludes that the person's absence was deliberate, the Judge moves on to consider whether the person's extradition would be compatible with his rights under the European Convention on Human Rights (see below): s. 85(3) and (4).
- If, however, the Judge concludes that the conviction was in absentia and the person was not deliberately absent, the Judge must order his discharge unless he is satisfied that the person would, on return be entitled to a retrial or a review amounting to a retrial ("entitled" means "has the right under law": s. 85(5)). The fundamental rights which are a precondition of such a finding are set out at s. 85(8) (the rights to choose own counsel, legal aid, right to cross-examine prosecution witnesses).
- If he concludes that the person would be so entitled, the Judge must then decide whether there is admissible evidence disclosing a prima facie case against the person: s. 85(6).
- If not, the person must be discharged; s. 86(5).
- If there is then the Judge moves on to consider whether the person's extradition would be compatible with his rights under the European Convention on Human Rights (see below): s. 86(6).
ECHR Compatibility
Does the documentation sent to the court by the Secretary of State consist of /include the following: s. 78(2)? -
If not, then the Judge must discharge the person: s. 78(3).
The Judge must decide, whether, on a balance of probabilities, the person before him is the person whose extradition is requested. If not then the Judge must order the person's discharge: s. 78(6).
Is the offence specified in the request an extradition offence: s. 78(4)(b)? For detailed consideration of this issue see Appendix 7.
If the Judge is not satisfied that the offence is an extradition offence he must discharge the person: s. 78(6).
Have copies of the documents sent to the Judge by the Secretary of State been served on the person: s. 78(4)(c)? If not, the Judge must discharge the person: s. 78(6).
Do any of the bars to extradition apply: s. 79(1)? These considered in detail at Appendix 8. If they do then the Judge must discharge the person: s. 79(3). If not, then the Judge moves on to consider the questions below.
In the case of a person who has not been convicted, is there admissible evidence disclosing a prima facie case against the person: s. 84(1)? If not, then the Judge must discharge the person: s. 84(5). It should be noted that the Secretary of State can by order disapply this requirement in respect of a given state: s. 84(7). A list of the states which do not have to provide a prima facie case is set out at Paragraph 3 Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 and a list is set out at Appendix 9.
Under s. 84(2) the Judge may treat a statement made by a person in a document as admissible evidence of a fact if –
Section 84(3) lists the factors to which the judge must have particular regard when determining admissibility under subsection (2).
Section 84(4) provides that a summary in a document of a statement made by a person must be treated as a statement made by the person in the document for the purposes of subsection (2).
In the case of a person who has been convicted the following process applies:
Would the person's extradition be compatible with his rights under the European Convention on Human Rights (s. 87)? If not, then the Judge must discharge the person (s. 87(2)). Otherwise the Judge is obliged to send the case to the Home Secretary to decide whether the person is to be extradited (s. 87(3)).
Person charged with UK offence: s88
If during the Extradition Hearing the Judge is informed that the person has been charged with an offence in the UK, under s. 88(2) he must adjourn the Extradition Hearing until one of the following occurs -
- the charge is disposed of;
- the charge is withdrawn;
- the charge is discontinued.
If, before the Judge adjourns the Extradition Hearing under s. 88(2), he has already made a decision under s. 79 as to whether extradition is barred by reason of the rule against double jeopardy, he must decide that question again when the Extradition hearing is resumed: s. 88(4).
If the UK charge results in a sentence of imprisonment, the Judge may adjourn the Extradition Hearing until the sentence has been served: s. 88(3).
Person serving sentence in UK: s89
If, during the Extradition Hearing, the Judge is informed that the person is serving a sentence of imprisonment in the UK, he may adjourn the hearing until the UK sentence has been served: s. 89(2).
Where the extradition proceedings are adjourned, the normal domestic period of 28 days for remands of accused persons already in custody, is increased to 6 months: s. 89(3).
Competing extradition claim: s90
If, during the Extradition Hearing, the Judge is informed that either -
- the following conditions in s. 90(2) are met:
- the Home Secretary has received another valid extradition request for the person from a category 2 territory; and
- that other request has not been disposed of; and
- the Home Secretary has made an order under s. 126(2) for deferral of the request under consideration by the court until the other request has been disposed of.
or the following conditions in s. 90(3) are met:
- the Home Secretary has certified a Part 1 warrant (EAW) in respect of the person; and
- that warrant has not been disposed of; and
- the Home Secretary has made an order under s. 179(2) for deferral of the request under consideration by the court until the certified EAW has been disposed of,
then the Judge must remand the person in custody/on bail: s. 90(4). The Judge may later grant bail if his initial decision is to remand in custody: s. 90(5).
Asylum claim: s121
If the person makes an asylum claim at any time between the certification of the Part 2 request and his being extradited pursuant to that request, he must not be extradited until his asylum claim has been finally determined by the Secretary of State.
Physical or mental condition: s91
If, during the Extradition Hearing it appears to the Judge that it would be unjust or oppressive to extradite the person by virtue of his physical/mental condition, he must either
- order his discharge: s. 91(3)(a), or
- adjourn the hearing until it appears to him that the person's physical /mental condition is such that it would no longer be unjust/oppressive to extradite him: s. 91(3)(b).
Sending case to Secretary of State: s92
Where the Judge sends the case to the Home Secretary for his decision on whether the person should be extradited, he must
- Inform the person of his right of appeal to the High Court and the fact that any appeal by the defendant against the decision to send will not be heard until the Home Secretary has decided whether to order his extradition: s. 92(2).
- Remand the person in custody / on bail, pending the Secretary of State's decision and, if extradition is ordered, extradition: s. 92(4). The judge may later grant bail if he decides at this stage decision to remand the defendant in custody: s. 92(5).
Secretary of State's consideration of the case: ss93-98
The Secretary of State must decide whether he is prohibited from ordering the person's extradition: s. 93(1).
He must decide whether he is prohibited from ordering extradition under any of the following sections: s. 93(2):
- s. 94 (death penalty);
- s. 95 (specialty);
- s. 96 (earlier extradition to the UK from other territory);
- s. 96A (earlier transfer to the UK by ICC).
If he decides any of these questions in the affirmative, the Secretary of State must order the person's discharge: s. 93(3).
Under s. 93(4) if he decides these questions in the negative, the Secretary of State must order extradition unless –
- he is informed that the request has been withdrawn, or
- he makes an order under s. 126(2) (competing Part 2 extradition requests) or s. 179(2) (competing Part 1 and 2 requests) for further proceedings on the request to be deferred and the person is discharged under s. 180, or
- he orders the person's discharge under s. 208 (national security).
In reaching his decision under s. 93(2), the Secretary of State is not required to consider any representations which he receives later than 4 weeks starting with the "appropriate day": s. 93(5) and (6). The definition of "appropriate day is set out in s. 102. In most cases it is the day upon which the Judge makes his decision to send the case to the Secretary of State: s. 102(7).
Where, however, the person has consented to extradition under s. 127, under s. 93(7) the Secretary of State is not required –
- to wait until the end of the permitted period before ordering extradition, or
- to consider any representations which he receives after making the order for extradition.
Death penalty: s94
The Secretary of State must not order the person's extradition if he has been / could be / will be sentenced to death for the offence in the category 2 territory: s. 94(1). This prohibition will not apply if the Secretary of State receives a written assurance which he considers to be adequate that the death penalty will not be imposed or (if imposed) not carried out: s. 94(2).
Specialty: s95
The Secretary of State must not order the person's extradition to a category 2 territory if there are no speciality arrangements in force with that territory: s. 95(1). (This does not apply if the person consented to extradition before his case was sent to the Home Secretary: s. 95(2).)
s. 95(3) provides that speciality arrangements with a category 2 territory are deemed to exist for these purposes if, under the law of that territory or arrangements made between it and the UK, a person who is extradited to the territory from the UK may only be dealt with for an offence committed before his extradition if -
- the offence falls within s. 95(4), or
- the person is first given the opportunity to leave the territory.
The offences in s. 95(4) are:
- the offence in respect of which the person is extradited;
- an extradition offence disclosed by the same facts as that offence (other than one punishable by death);
- an extradition offence in respect of which the Home Secretary consents to the person being dealt with;
- an offence in respect of which the person waives his right to specialty.
Speciality arrangements with a category 2 Commonwealth country/British Overseas Territory may be made for the purpose of a particular case or more generally: s. 95(5).
A certificate issued by the Secretary of State which confirms the existence of such arrangements and sets out their terms is conclusive evidence: s. 95(6).
Earlier extradition to the UK from another territory: s96
The Secretary of State must not order the person's extradition to a category 2 territory if -
- the person was previously extradited to the UK from another territory and
- the extradition arrangement with that territory requires that territory's consent to any further extradition and
- no such consent has been given.
Earlier transfer to the UK by International Criminal Court: s96A
Under s. 96A(1) the Secretary of State must not order a person's extradition to a category 2 territory if –
- the person was transferred to the UK in order to serve a custodial sentence imposed by the ICC and
- under arrangements between the UK and the ICC, the consent of the ICC Presidency is required to the person's extradition from the UK to the category 2 territory for the offence concerned and
- such consent has not been given.
s. 96A(2) provides that these do not however apply if the person has served the ICC sentence and has subsequently -
- remained voluntar