What is extradition?
This is a simple introduction to a complex subject. It is not a definitive statement of the law and does not cover every aspect of extradition.
Extradition is the formal procedure for requesting the surrender of persons from one territory to another for the following purposes:
- to be prosecuted
- to be sentenced for an offence for which the person has already been convicted
- to carry out of a sentence that has already been imposed.
The relevant primary legislation is the Extradition Act 2003. For a full understanding of extradition proceedings with any given state, one must also consult any applicable extradition instrument (treaty, convention or scheme).
What are 'export' and 'import' extradition requests?
An 'export' extradition request is made by another state to the United Kingdom, for the extradition of someone from the UK. It is sometimes known as an 'incoming' request as it is made to the United Kingdom.
An 'import' extradition request is made by the United Kingdom to another state, for the extradition of someone to the UK. It is sometimes known as an 'outgoing' request as it is made by the United Kingdom.
What offences can people be extradited for?
Not all offences are "extradition offences". This depends on the definitions in the Extradition Act, and any applicable treaty or convention governing extradition proceedings with the state in question.
Export extradition to category 1 territories
Part 1 of the Extradition Act regulates export extradition from the United Kingdom to category 1 territories. These territories are the other 27 Member States of the European Union, and also Gibraltar. This part of the Act implements the European Union Framework Decision of 13th June 2002 on the European Arrest Warrant and the surrender procedures between Member States. The framework decision has been implemented in all EU Member States by amendments to the domestic legislation of those States.
The National Crime Agency is the designated authority for the receipt of European arrest warrants (EAWs). It has an administrative function in certifying warrants that satisfy the requirements of the Extradition Act; for example the warrant must contain specified information relating to the alleged offence in accusation cases, or the sentence in conviction cases.
The CPS acts as the representative of the requesting judicial authority in the extradition proceedings. All export extradition cases where the person is arrested in England and Wales are dealt with at Westminster Magistrates' Court in London.
After the EAW has been certified the wanted person can be arrested by a constable who must bring the person to Westminster Magistrates' Court as soon as practicable. In certain circumstances a provisional arrest is possible before the EAW has been issued. Where this happens the person must be produced at court within 48 hours of the arrest, by which time the EAW must have been issued and certified.
At the Initial Hearing the district judge carries out several steps. The judge decides whether the person arrested is the person named on the warrant; fixes a date for the start of the extradition hearing within 21 days of the date of arrest; informs the person about the content of the EAW; explains to the person that he may consent to his surrender; and decides whether to grant bail or remand the person in custody pending the extradition hearing.
At the Extradition Hearing proper the district judge must decide a number of issues including: is the offence an extraditable offence? Are there any bars to the extradition? Is the extradition compatible with the person's rights under the European Convention on Human Rights and is extradition proportionate to the seriousness of the conduct and the likely sentence? If there are no statutory grounds to refuse the request, an order is made for the person's surrender.
The meaning of extradition offence is given in sections 64 to 66 of the Act. In simple terms, in cases where a person is wanted for prosecution the offence must usually be one that could lead to a prison sentence of at least 12 months in the requesting state. For certain offences that are listed in the framework decision and which could lead to a prison sentence of at least 3 years in the requesting state, there is no requirement that a parallel offence exists in UK law. Otherwise the conduct complained of in the EAW must also be an offence in the United Kingdom. This element of "dual criminality" is always required if any of the conduct occurred in the United Kingdom, whether or not the offence is included in the framework decision list. Where the person is wanted to serve a sentence, whether or not the offence is deemed an extradition offence depends on various factors including the length of sentence imposed in the other state.
The Extradition Act gives either the wanted person or the requesting state a right of appeal against the decision of the district judge. Appeals are to the High Court and timeframes are set out in the Act. Notice of the appeal must be given within 7 days of the decision of the judge at Westminster Magistrates' Court. It is possible to appeal from the High Court to the Supreme Court provided that the former certifies that the appeal involves a point of law of general public importance, and either court gives leave for the appeal to be made.
If extradition is ordered by the judge at Westminster Magistrates' Court and there is no appeal, the person must be surrendered within 10 days of the extradition order. Otherwise, if the appeal does not affect the extradition order, surrender must take place within 10 days of the conclusion of the appeal proceedings.
If before conclusion of the extradition hearing at Westminster Magistrates' Court the wanted person is charged with an offence in England or Wales, the court must adjourn the extradition proceedings until the domestic matter is concluded. If the person is already serving a sentence of imprisonment in the UK, extradition proceedings may either be postponed until he has completed his sentence or, if the purpose of the request is to prosecute the person in the other state, he can be temporarily surrendered on the undertaking that he will be remanded in custody in the other state and returned to complete his UK sentence at the conclusion of the foreign trial. Broadly similar provisions apply in the period after extradition has been ordered but before it has been carried out.
Export extradition to category 2 territories
Part 2 of the Extradition Act, in conjunction with any applicable extradition instrument, regulates export extradition from the United Kingdom to category 2 territories. These are states outside the European Union. At present there are almost 100 states designated as category 2 territories.
Upon receipt of a an extradition request from a category 2 territory the Secretary of State for the Home Department, acting on the advice of the Home Office's International Criminality Unit, must decide whether or not to certify the extradition request.
Requirements for certification are similar but not identical to those imposed for category 1 territories. Having certified the request, documents are sent from the Home Office to Westminster Magistrates' Court.
The CPS acts as the representative of the requesting state in category 2 cases (as for category 1 territories), and all proceedings are heard at Westminster Magistrates' Court.
On receipt of papers a district judge at this court decides whether or not to issue an arrest warrant for the wanted person. The judge must have reasonable grounds to believe that the offence is an extraditable offence, which is defined in sections 137 and 138 of the Act and is similar to the provisions for category 1 territories, although the rules on dual criminality are different. A second requirement in accordance with section 71 of the Act is, in simple terms, that depending on the state concerned, the judge must also have reasonable grounds for believing that evidence or information contained in the request would in an analogous domestic case justify the issue of a warrant for the persons arrest.
If the judge issues a warrant, the person may be arrested by a constable who does not need to have the warrant with him at the time of arrest. After arrest the person is brought to Westminster Magistrates' Court as soon as practicable.
At the first court hearing the district judge informs the person about the content of the extradition request; explains to the person that he may consent to his extradition; fixes a date for the start of the extradition hearing, within 2 months from the date of the first appearance; and decides whether to bail the person or remand him in custody till the extradition hearing.
As with category 1 territories, provisional arrest is also possible with requests from category 2 territories, in accordance with sections 73 and 74 of the Act.
At the extradition hearing the judge must decide a number of issues: whether the documentation sent to the court by the Secretary of State complies with the Act; whether the individual arrested is the person named on the warrant; whether the offence detailed in the request is an extradition offence; be satisfied that the person has been given the necessary documentation including copies of the request and the Secretary of States certificate; whether any of the bars to extradition apply; and, whether the extradition would be compatible with the person's rights under the European Convention on Human Rights.
Additionally, and for certain states only, section 84 of the Act requires the judge to decide if there is sufficient evidence which would make a case requiring an answer by the person if the proceedings were the summary trial of an information against him. Section 84 does not apply for a number of states that have been designated by the Secretary of State, including the following: Albania, Andorra, Armenia, Australia, Azerbaijan, Bosnia and Herzegovina, Canada, Croatia, Georgia, Iceland, Israel, Liechtenstein, Macedonia FYR, Moldova, Montenegro, New Zealand, Norway, Russian Federation, Serbia, South Africa, Switzerland, Turkey, Ukraine and the United States of America.
If the district judge is satisfied on all the above issues at the extradition hearing, the judge must send the case to the Secretary of State.
The Secretary of State must then consider a number of issues including the following: the possible imposition of the death penalty, in which case extradition cannot be ordered; the rule of specialty, which prohibits a person being dealt with in the requesting state for matters other than those referenced in the extradition request; and whether or not the person was in the UK following extradition from another state, in which case that states permission must be obtained before extraditing to a third state. If these factors do not prevent extradition, the Secretary of State must order extradition within 2 months of the appropriate day, defined in section 102 and in most cases the day on which the district judge referred his decision to the Secretary of State.
The Extradition Act gives both the wanted person and the requesting state a right of appeal against the decision of the district judge, or the Secretary of State. Appeals are to the High Court with timeframes set out in the Act. It is also possible to appeal to the Supreme Court but as with category 1 territories this is only possible if the High Court certifies that the appeal involves a point of law of general public importance, and either the High Court or the Supreme Court gives leave for the appeal to be made.
Similar provisions apply as for category 1 territories if the wanted person is either charged with, or serving a sentence in respect of, a domestic offence.
Export extradition to non-category 1 or 2 territories
Many states are not designated as either category 1 or 2 territories. For these states export extradition from the United Kingdom may still be possible pursuant to section 193 of the Extradition Act, where the states involved are parties to specified international conventions (and related secondary legislation), or under section 194 which allows for special "ad hoc" extradition arrangements. Such extraditions, however, are rare.
Reasons for refusing an extradition request
Reasons for refusing an extradition request, bars to extradition, are set out in both Parts1 and 2 of the Act, and also within multi and bilateral extradition instruments, and include the following (this list is not exhaustive):
- 'Double jeopardy'; a person must not be prosecuted or sentenced in respect of an offence that he has already been convicted or acquitted of.
- Extraneous considerations; the request will be refused if the purpose of the request is deemed to be to prosecute or punish the person on account of race, religion, nationality, gender, sexual orientation or political opinions, or if extradited the person might be prejudiced at his trial or punished unfairly for any of these reasons.
- Passage of time; the request will be refused if it would be oppressive to prosecute or punish the person for the extradition offence due to the age of the alleged offence.
- Age of wanted person; extradition is not possible if due to his age the person could not be convicted of the offence in the United Kingdom.
- Absence of speciality provisions; specialty is the principle that a person may only be dealt with in the requesting state for the conduct in respect of which extradition was ordered. Extradition instruments invariably include specialty provisions.
- Earlier extradition of the wanted person to the United Kingdom; in order to permit extradition to the requesting state in this situation the United Kingdom must first obtain permission from the state that extradited the person to the UK.
- Human rights; extradition will be refused if it would not be compatible with the person's rights under the European Convention on Human Rights within the meaning of the Human Rights Act.
- Death penalty; a person must not be extradited if there is a possibility that the person will be sentenced to death. Extradition may be possible if the requesting state gives an undertaking that the death penalty will not be imposed.
- Physical or mental condition; if it would be unjust or oppressive to extradite the wanted person on these grounds the extradition request will either be refused or adjourned until the condition improves.
- Forum; a person must not be extradited if the judge decides that a substantial measure of the activity in question was performed in the United Kingdom and that, having regard to a range of matters specified in the Act relating to the interests of justice (and only those matters), the extradition should not take place.
- Proportionality; in relation to EAW cases where the requested person is wanted for prosecution, extradition must not take place if the judge decides that extradition would be disproportionate taking into account the seriousness of the conduct alleged to constitute the extradition offence, the likely penalty and the possibility of the foreign authorities taking less coercive measures than extradition.
- Absence of a decision to charge and try; in EAW cases involving accusation warrants, extradition is not possible where it appears to the judge that there are reasonable grounds for believing that the requesting authority has not yet taken a decision to charge and try the requested person unless the sole reason for that situation is the absence of the requested person.
Import extradition essentially falls into two broad categories; extradition from category 1 or category 2 territories.
Category 1 territories are the other Member States of the European Union, and also Gibraltar. For these territories the EAW is the mechanism used to request surrender. Part 3 of the Extradition Act regulates the EAW scheme with regard to import extradition. Crown Prosecutors throughout England and Wales are responsible both for drafting EAWs in their own cases and for applying to the court for their issue. EAWs are issued and processed by judicial authorities without state involvement. In England and Wales, an EAW may be issued by a District Judge (Magistrates' Courts), a justice of the peace, or a judge entitled to exercise the jurisdiction of the Crown Court.
Once issued, the prosecutor sends the EAW to the Fugitives Unit of the National Crime Agency which is responsible for transmitting the warrant to the state where the wanted person is believed to be. An EAW is not country specific and is applicable in all category 1 territories.
The second category of import extradition cases concerns requests to category 2 territories which are designated states outside the European Union. In these cases Crown Prosecutors throughout England and Wales are responsible for collating the necessary information for the specialist Extradition Unit of CPSs Special Crime Division in London, which then drafts the extradition request. The papers are then passed to the International Criminality Unit of the Home Office before being sent to the other territory under authority of the Secretary of State, as extradition requests to territories outside the European Union are made on a state-to-state basis.
For requests to both category 1 and 2 territories CPS lawyers only prepare an extradition request after considering the Code Tests (see the Code for Crown Prosecutors in the Legal Resources section). A request can be made for any of the following three purposes: to prosecute the wanted person for offences stated in the request; to sentence the person for offences noted in the request that the person has already been convicted of; and, to carry out a sentence on the person that has already been imposed in respect of offences noted in the request.
Upon arrest in the requested state, the foreign court will conduct the extradition hearing in accordance with their legislation. The foreign authority, usually the national prosecution service, will represent the United Kingdom during proceedings. If extradition is ordered United Kingdom police officers travel to the requested state to collect the person and return him to the UK. The person will be brought to the relevant court or, if the request was issued for the person to complete an existing custodial sentence, to the relevant prison.
As noted some states are not designated as either a category 1 or 2 territory. It may still be possible to make an extradition request in these circumstances, pursuant to section 193 of the Extradition Act, Parties to international conventions (and related secondary legislation). Such requests however are rare. Another alternative, also rarely used, is for the United Kingdom to seek an ad-hoc arrangement with the other state, to permit a request to be made.
Further details on extradition can be found here: https://www.gov.uk/extradition-processes-and-review
The Extradition Act can be seen at www.legislation.gov.uk.