Extradition

04 February 2019|Legal Guidance, International and organised crime

Introduction

This guidance provides an overview of extradition proceedings in England & Wales, the CPS’s role in these proceedings, and how the CPS makes extradition requests.

  • Extradition is the formal process for requesting the surrender of requested 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; or
    • to carry out of a sentence that has already been imposed.
  • The Extradition Act 2003 (as amended) provides the domestic legal basis for extradition to and from EU Member States (including Gibraltar) under the European Arrest Warrant (‘EAW’). It also provides the domestic legal basis for all extradition requests received by the UK from other countries. Extradition requests made by the UK to non-EU countries are not covered by statute except for limited provisions.
  • With regards to extradition from the UK, the CPS conducts extradition proceedings on behalf of foreign authorities (EAWs) and states (non-EAW countries) for requested persons arrested in England & Wales.
  • For extradition to the UK from EU Member States, EAWs are issued by an appropriate judge on application by or on behalf of any CPS prosecutor. These EAWs are placed on the Schengen Information System (‘SIS II’) by the National Crime Agency (‘NCA’) and are circulated as (Article 26) alerts across the EU.
  • For extradition to the UK from outside of the EU, extradition requests are prepared by CPS prosecutors in a Central Casework Division (‘CCD’), most commonly by the International Justice and Organised Crime Division (‘IJOCD’). These extradition requests are then issued by the Home Office and transmitted overseas by the Home Office via the diplomatic channel.
  • Interpol Red Notices (or Diffusions) may be sought, to seek the arrest of requested persons outside the EU. These are also authorised by CCDs. Where Red Notices are used, they must be followed by a full extradition request if the requested person is arrested.

Extradition from the UK

The Extradition Unit, part of the IJOCD in the CPS, conducts extradition proceedings on behalf of foreign authorities for ‘requested persons’ arrested in England & Wales.

A requested person may be arrested in England & Wales on the basis of:

  • An EAW certified by the NCA under section 2 of the Extradition Act 2003; or
  • A provisional arrest on behalf of an EU Member State under section 5 of the Extradition Act 2003; or
  • An extradition request that has been certified by the Home Office and a warrant that has been issued by a domestic court under section 71 Extradition Act 2003; or
  • A provisional request for extradition that has been received by domestic law enforcement and an arrest warrant that has been issued by domestic court under section 73 of the Extradition Act 2003.

Once arrested, the requested person must be brought to Westminster Magistrates’ Court (where all extradition proceedings in England & Wales are conducted). There are proceedings in all cases; extradition is not “automatic”, even under the EAW.

If the requested person does not consent to extradition, the court will consider whether:

  • the conduct described in the warrant amounts to an extradition offence;
  • any of the statutory bars to extradition apply;
  • there is prima facie evidence of guilt (if applicable, see below);
  • extradition would be disproportionate or would be incompatible with the requested person’s human rights.

In EAW cases the court will decide whether to discharge the case or to order extradition.

In all other cases the court will decide whether to discharge the case or send the case to the Home Office to consider extradition.

CPS Role in Extradition Proceedings

The CPS Extradition Unit represents the foreign authority seeking the return of the requested person in extradition cases. The CPS Extradition Unit provides advice to foreign authorities on the content and validity of extradition requests received from the NCA or Home Office and represents foreign authorities in extradition proceedings at Westminster Magistrates Court, the High Court, and the Supreme Court.

Prima Facie Requirement

In some non-EAW cases the court must decide whether there is enough admissible evidence to provide a case to answer and warrant a trial if the offence had taken place in this jurisdiction (The Queen on The Application of Philip Harkins-v-The Secretary Of State for the Home Department [2007]). In making this determination, the judge must consider whether the prosecution case, taken at its highest is such that no jury properly directed could convict upon it (R v Galbraith [1981]).

The judge may consider a statement made by a person in a document as admissible evidence, if the statement is made to a police officer or someone charged with the duty of investigating offences or charging offenders, and if direct oral evidence by the person of the fact would be admissible.

A prima facie requirement does not apply to the EAW.

In addition, all countries that are signatories to the Council of Europe Convention on Extradition 1957 (‘ECE’), as well as USA, Canada, Australia New Zealand, Hong Kong SAR and a number of other territories (see full list here) are exempt from the requirement to establish a prima facie case. These countries are only required to provide ‘information’ regarding the accusation or conviction, which is often presented in the form of an affidavit.

Bars to Extradition

The statutory bars to extradition apply to all cases, even if there is no explicit clause in the relevant treaty.

If the judge finds that any of the bars to extradition apply, the requested person must be discharged.

The statutory bars to extradition include the following;

  • Double Jeopardy - whether the person has already been prosecuted for the same offence;
  • Absence of Prosecution Decision - whether the prosecution case against the accused is sufficiently advanced;
  • Extraneous Considerations - whether the request for extradition is improperly motivated and there is a risk of prejudice to the requested person;
  • Passage of Time - whether extradition would be unjust or oppressive in light of the amount of time that has passed since the offence or since the person has been unlawfully at large;
  • Age (EAW cases only) - whether because of age, the requested person could not be guilty of the offence;
  • Hostage-taking Considerations (non-EAW cases only) - whether the requested person would be unable to communicate with protective authorities and the extradition offence falls under the Taking of Hostages Act 1982;
  • Death Penalty (non-EAW cases only) - whether or not the requested person could be sentenced to death for the extradition offence in the requesting state;
  • Specialty - prevents the requested person from being dealt with in the requested state for offences other than those for which they have been extradited;
  • Earlier Extradition from Territory / by the International Criminal Court (‘ICC’) - whether the requested person was previously extradited to the UK from another country or by the ICC to serve a custodial sentence and no consent has been given by that country or by the ICC President for further extradition;
  • Forum - whether it would be in the interests of justice for the requested person to be prosecuted in the UK instead.

Human Rights

In all extradition cases, the judge has to consider whether or not extradition would be compatible with the requested person’s human rights. If the judge finds that extradition would not be compatible with the requested person’s human rights, he cannot order that person’s extradition and must discharge them. Common challenges include claims regarding family or private life in the UK and prison conditions in the requesting state.

For EAW accusation cases (wanted for prosecution), this also involves the judge considering the principle of proportionality. This means that the judge must consider whether or not extradition would be disproportionate in any given case, based upon the seriousness of the alleged conduct, the likely penalty were the requested person to be found guilty and the possibility of less coercive measures being taken by the foreign authority.

Ongoing Domestic Prosecution

Occasionally a requested person will be facing prosecution for an unrelated offence in the UK (either before arrest on the extradition matter or at any point prior to extradition). In this scenario, the Extradition Act gives primacy to domestic proceedings.

If this situation arises, extradition proceedings must be adjourned until the domestic matter is concluded. The court should proceed with the domestic prosecution and ensure that the Extradition Unit is made aware of the domestic proceedings.

However, if the requested person is a witness or a suspect in a domestic investigation, or the requested person is subject to confiscation proceedings, the extradition process will be expected to go ahead. There is no legal basis to postpone extradition proceedings where the requested person is not charged with an offence in the UK (although extradition may be refused on the basis it would be in the interests of justice for the person to be prosecuted in the UK instead of being extradited).

Serving an Existing Sentence in the UK

If the requested person is serving a sentence in the UK, the court has the discretion to:

  • Adjourn extradition proceedings until that sentence has been served; or
  • Consider temporary transfer of the requested person to the requesting state.

Temporary transfer will be subject to the receipt of undertakings as to the status of the requested person during the period of temporary transfer; for example an undertaking that the requested person will be remanded in custody whilst in the requesting state and will be returned to custody in the UK at the conclusion of the foreign proceedings.

Bail

As with bail in domestic criminal proceedings, bail in extradition cases is also covered by the Bail Act 1976. Where the requested person is wanted to face an accusation, the starting point is that there is a ‘presumption in favour’ of bail. In conviction cases (where the requested person has been convicted for the offences which are the subject of the request) there is no presumption in favour of bail.

In deciding to grant bail in extradition cases, the court may consider whether to impose stringent bail conditions. In extradition cases, these may typically include, but are not confined to:

  • Provision of a security/ surety;
  • Surrender / retention of travel documents;
  • Prohibition against applying for travel documents;
  • Geographical restriction from being near travel ports or airports;
  • Regular reporting to the police station.

Breach of Bail

Although extradition proceedings are dealt with exclusively at Westminster Magistrates' Court, where a person is brought to another court for a breach of bail there is jurisdiction to deal with the breach in the usual way. The Extradition Unit must be notified of the outcome of the bail hearing.

Persons refused bail at the Magistrates' Court may apply for bail to the High Court, but this can only be done after the court has twice refused to grant bail.

It is also possible to appeal against the granting of bail, but the Extradition Unit must be consulted before deciding whether to appeal bail. If the CPS, on behalf of the foreign authority, seeks to appeal the decision to grant bail, the bail appeal will be heard by the High Court within 48 hours.

Appeals

Appeals against the decision of the court, or against a decision of the Home Office to extradite a requested person, may be made to the High Court.

Removal

When extradition has been ordered by Westminster Magistrates’ Court on the basis of an EAW, the requested person must be extradited within 10 days of: the expiration of the 7 day notice period for applying for permission to appeal; or a date agreed by the judge and the foreign authority. Where the requested person makes an unsuccessful appeal, he must be extradited within 10 days of: the High Court’s decision becoming final; or any later date agreed between the court and the foreign authority.

Where extradition has been ordered by the Secretary of State (non-EAW cases), and where the requested person does not give notice to appeal within 14 days of the Secretary of State giving the decision to extradite, he must be extradited within 28 days from the day the extradition order was made. Where the requested person makes an unsuccessful appeal, he must be extradited within 28 days from when the appeal decision became final.

Extradition to the UK (From the EU)

EAWs are issued by the UK under Part 3 of the Extradition Act 2003. An EAW can be issued to seek extradition for the following purposes only:

  • To prosecute (an accusation EAW);
  • To impose a sentence (a conviction EAW); or
  • To execute a sentence that has already been imposed (a conviction EAW).

To apply for an EAW it is not necessary to know if the requested person is in a particular EU Member State, or indeed if the requested person is in the EU at all. This is because EAWs are placed on the Schengen Information System (‘SIS II’) and are circulated as (Article 26) alerts across all EU states which use the EAW, except Ireland, Croatia, and Cyprus.

The CPS prosecutor with conduct of the case will generally be responsible for the application to the court for an EAW in their case.

Provisional Arrest (prior to issuing an EAW)

A request for provisional arrest can be made in exceptional circumstances. This would be where the person has been located, is considered a flight risk, and there is insufficient time to obtain an EAW. It must be believed that an EAW will be issued in due course.

In such circumstances, an application can be made to the NCA, to seek the provisional arrest of a person prior to the issuance of the EAW. When a person is provisionally arrested, an EAW must be issued and received by the relevant Member State within 48 hours of arrest (some Member States require an EAW within 24 hours).

Considering whether to apply for an EAW - Accusation Cases

Prosecutors may apply for an EAW for a person in respect of offences which pass the Full Code Test. As the EAW will seek the return of the requested person for the purpose of facing trial, prosecutors should ensure they are trial ready before making an application for an EAW. An exception to this would be in ‘Threshold Test’ cases (see below).

As an EAW necessarily involves the deprivation of liberty of the requested person and their transfer to another country, as well as the use of considerable resources both on the part of the CPS and other criminal justice partners, it is important that applications for EAWs should only be made in cases where it is clearly appropriate and proportionate. In particular, the following factors should be taken into account when issuing an EAW:

  • the seriousness of the offence (for example, the harm or danger caused);
  • the likely penalty imposed if the person is found guilty of the alleged offence (for example, whether it would be a custodial sentence); and
  • the interests of the victims of the offence.

Prosecutors should also consider whether the offending gives rise to concurrent jurisdiction. This is in cases where the conduct took place in more than one Member State or where another Member State has extra-territorial jurisdiction to prosecute the matter. In such cases guidance can be sought from the Legal Guidance on Jurisdiction and the Guidelines on the Handling of Cases where the jurisdiction to prosecute is shared with Prosecuting Authorities Overseas.

In addition to cases which pass the Full Code Test, there may be exceptional cases where it is appropriate to consider an EAW based on a charging decision taken using the Threshold Test. It is unlikely that such exceptional circumstances will arise other than in cases involving very serious offences or where there is a real risk to life.

Where, exceptionally, a prosecutor considers it necessary to charge on the Threshold Test and apply for an EAW, a Deputy Chief Crown Prosecutor (DCCP) or above must certify that:

  1. the case meets the Threshold Test;
  2. a time table for the receipt of further evidence has been set out in accordance with the DPP’s charging guidance; and
  3. it is necessary to issue an EAW without waiting for a Full Code Test to be applied. Note that in Threshold Test cases when the requested person is arrested and a court date is set for determination of the EAW in the requested state, a further case review must be carried out. Where possible, the Full Code Test must be applied before the accused person is surrendered to the UK.

Considering whether to apply for an EAW - Conviction Cases

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 arrest and extradition so that the requested person may be sentenced for the offence.

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 arrest and extradition so that the requested person may serve the outstanding portion of his sentence. This may arise when:

  1. a person is sentenced in absence following conviction;
  2. a serving prisoner absconds;
  3. 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 (a) the court is likely to have issued an arrest warrant prior to the sentencing hearing and this domestic warrant should be provided to the issuing judge when applying for the EAW.

In (b) the person will be ‘unlawfully at large’ from the day they absconded, e.g. failed to return to prison following temporary release, or escape from prison. Where a person is unlawfully at large they can be arrested without a warrant. However, if the person is to be charged with new offences (e.g. escape from lawful custody), a domestic warrant will be needed for the new offences when applying for an EAW. The new offences will also need to be added to the EAW. These cases will be referred to the CPS by law enforcement or Her Majesty's Prison and Probation Service (‘HMPPS’).

In (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, and no domestic warrant is necessary when applying for an EAW. These cases will be referred to the CPS by law enforcement or HMPPS.

Transfer of Sentence

In conviction cases it may be possible to transfer the sentence to the country of the requested person’s nationality rather than seeking an EAW. Advice and assistance can be obtained from HMPPS, who will be responsible for arranging the transfer of sentence.

Considering whether to apply for an EAW - Mixed Cases

Separate accusation and conviction cases against the same defendant can be included in a single EAW, but care needs to be taken to ensure that the different matters are clearly set out.

Dual Criminality

If the conduct for which the requested person is sought falls within the EAW Framework Decision list of 32 offence categories this will remove the need for the executing Member State to establish whether the conduct would also be an offence in that country. Where the conduct does not fall within the EAW Framework Decision list of offence categories, the executing Member State may need to establish dual criminality (i.e. that there is an equivalent, if not identical, offence in their domestic legislation). In these cases, additional description of the conduct should be included in the EAW to aid the foreign authority in the executing Member State.

Date of the Offence

For six Member States an EAW will not be executed if the offence date precedes a ‘relevant date’: 

  • France – 1 November 1993
  • Austria, Italy, Luxembourg and Slovenia – 7 August 2002
  • Czech Republic – 1 November 2004

If the person is being sought from one of these Member States, for offending before the relevant date, consideration should be given to issuing an extradition request instead (see below) or in addition to an EAW (in case the person being sought travels, or is likely to travel, to another Member State).  

 Applying for an EAW

An EAW can only be issued by an appropriate judge, a District Judge (Magistrates' Courts), a justice of the peace, or a judge entitled to exercise the jurisdiction of the Crown Court. An application can only be made by a constable or an appropriate person designated under the Extradition Act 2003. Crown Prosecutors are designated as appropriate persons.

The CPS does not make EAW applications on behalf of other UK prosecutors and must have conduct of domestic proceedings in order to make an EAW application. Although a constable may apply for an EAW, as a matter of policy, this application can only be made with the approval of the responsible CPS Prosecutor in the relevant CPS Area or CCD. 

An EAW will be issued if:

  • there are reasonable grounds for believing that the person has committed an extradition offence; and
  • a domestic warrant has been issued in respect of the person.

Or if:

  • the person has been convicted of an extradition offence by a court in the UK;
  • extradition is sought for the purpose of being sentenced for the offence or serving a custodial sentence or another form of detention imposed in respect of the offence; and
  • either a domestic warrant has been issued in respect of the person or the person may be arrested without a warrant.

An extradition offence is defined in the Extradition Act, and includes the following scenarios in ‘accusation’ cases:

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

And in ‘conviction’ cases:

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

Issuing the EAW

If the application for the EAW is successful, it must be sent to the UK International Crime Bureau (‘ICB’) within the National Crime Agency (‘NCA’) to issue and circulate as an (Article 26) alert on SISII.

Seizure of Property

Property can be seized at the time the EAW is executed if specified in the EAW. However, items seized are unlikely to be handed over as evidence until the person is surrendered. The powers to search and seize at the time of executing the EAW vary in Member States. Alternatively, if such property is required as evidence, it can be sought using a European Investigation Order (EIO) or letter of request (LOR).

Conditional Surrender - Return to Serve Sentence Imposed

In accusation cases, if the requested person is a national of the executing Member State, surrender may be conditional on the subsequent return of the requested person to serve any sentence that is imposed (i.e. the person, if convicted, does not serve the sentence in England & Wales).  

The following Member States may require such a guarantee:

  • Austria
  • Bulgaria
  • Cyprus
  • Estonia
  • Finland
  • France
  • Hungary
  • Netherlands
  • Romania
  • Slovenia

An undertaking that the requested person will be returned to serve sentence following conclusion of the proceedings in the UK may only be given by the Home Office. In this context, “conclusion of proceedings” will usually include the conclusion of any confiscation proceedings relating to offences charged. Further advice on these undertakings can be sought from the International Criminality Unit (ICU) at the Home Office.                                                                                 

Temporary Surrender - Persons Serving a Sentence Overseas

If the requested person is a serving prisoner in another Member State they may be surrendered either at the end of the existing sentence in the executing Member State (i.e. execution is postponed) or temporarily for the purposes of trial. For the purposes of temporary surrender an undertaking will usually require that the requested person will be remanded in custody during his stay in the UK, and that following conclusion of the proceedings in the UK, the requested person will be returned to the Executing State to complete the existing sentence. This undertaking may only be given by the Home Office. Further advice on these undertakings can be sought from ICU at the Home Office.

The Extradition Act binds domestic courts to respect the Secretary of State’s undertaking regarding custody, such that the court may only bail a person who is subject to such an undertaking if there ‘are exceptional circumstances which justify it.’ (see section 154(2)).

If the requested person is convicted and given a custodial sentence in the UK, and then returned to the other Member State, another EAW (this time a conviction EAW) will normally be required to secure the person’s further, and unconditional, surrender to the UK in order to serve the domestic sentence. Alternatively, the Executing Member State may decide to refuse the EAW and enforce the UK sentence instead (see below).

Refusal - Enforcement of Sentence in the Executing State

In conviction cases, a surrender may be refused where:

  1. the requested person is staying in, or is a national, or a resident of the executing Member State; and
  2. the Member State undertakes to execute the sentence.  

If this is the ground for refusal, then pursuant to the Extradition Act, the domestic sentence is ‘treated as served’. Sentences transferred abroad as a consequence of EAWs can be “adapted” or “converted” by the relevant foreign authority so that they accord with the executing Member State. On occasion this may mean a reduction in the term imposed by courts in England and Wales. Further advice on transferring sentences can be sought from HMPPS.

Withdrawing an EAW

An EAW can only be withdrawn 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 an EAW is to be withdrawn an application should be made to the court by the prosecutor. Law enforcement should also consider applying to withdraw any related domestic warrants.

Surrender to the UK

If the requested person’s extradition is ordered, the UKICB will be notified and will liaise with relevant law enforcement agency responsible for collecting the person in the other Member State. Once extradited to the UK the requested person should be brought promptly before the court whose domestic warrant led to the issue of the EAW. Since criminal proceedings have already begun, no further arrest is necessary.

Extradition to the UK (From the Rest of the World)

There is no statutory basis for issuing an extradition request to territories outside the EU. They are issued by the Home Office under Royal Prerogative. Extradition requests to the rest of the world can be made on the basis of:  

  • a bilateral treaty between the UK and the country concerned;
  • the 1957 European Convention on Extradition (‘ECE’) (list of signatories);
  • any other multilateral convention to which the UK and the country concerned are both parties, for example, United Nations Convention against Corruption (UNCAC), United Nations Convention against Transnational Organized Crime (UNTOC);
  • An ad-hoc extradition request to a particular state seeking the return of a named individual for a specific offence or offences.

Extradition will only be possible in respect of an extradition offence. The definition will vary based on the international basis for the request. In broad terms it must be a criminal offence, however defined in the requesting and requested states, which is punishable in both with at least 12 months’ imprisonment. In conviction cases a sentence of at least 4 months’ imprisonment must have been imposed.

IJOCD drafts all extradition requests to all territories outside the EU on behalf of CPS Areas. Prosecutors within the other CCDs are responsible for preparing extradition requests in their own cases. Once a request is drafted it is sent to ICU at the Home Office for transmission overseas.

Interpol Red Notices / Wanted Diffusions

In general, Red Notices and Wanted Diffusions should only be issued where the requested individual is not believed to be in the EU.

A Red Notice is a request to locate and provisionally arrest an individual pending receipt of a full extradition request. Red Notices are issued by Interpol at the request of a member country based on a valid domestic arrest warrant. A Red Notice may be “public” or “private”. Public Red Notices are published on the Interpol website.

A Wanted Diffusion is similar to, but a less formal alert mechanism than a Red Notice, and can also be used to request the arrest of an individual. It differs from a Red Notice in that a Diffusion is sent direct to selected countries.

If an individual is located (and arrested) on the basis of a Red Notice or a Wanted Diffusion, a full extradition request will need to be issued using the formal diplomatic route within tight timescales or else risk that the individual is discharged, knowing that their extradition is being actively sought.

A CPS Red Notice or Wanted Diffusion must be authorised by the CPS IJOCD and sent to the UKICB at the NCA to be issued. The CPS only authorises a Red Notice or Wanted Diffusion where it is necessary and proportionate.

Disclosure

This section applies to all extradition to the UK.

The three main disclosure issues that could arise in the extradition context are:

  • Formal disclosure of unused material;         
  • Duty of candour in respect of the content of the extradition request;
  • Disclosure of the extradition papers and material generated by the extradition process.

Formal Disclosure

In the context of extradition of persons to the UK, formal statutory disclosure duties will arise only where the accused has left the UK’s jurisdiction after charge (in circumstances where D has either entered a ‘Not Guilty’ plea in the Magistrates’ Court or has been sent for trial at the Crown Court) and before conviction. The statutory duty of disclosure will not arise where the accused has absconded before charge or after conviction.                                       

Even if there is no statutory duty to make disclosure, prosecutors should still consider whether the common law duty of disclosure applies in accordance with R v DPP ex parte Lee [1999] 2 All ER 737. Early disclosure is referred to in Chapter 2 of the Disclosure Manual. Early disclosure will often benefit the prosecution as well as the defence by obviating fruitless lines of enquiry. It may also mean that the proceedings following the accused’s extradition can progress more quickly.

Disclosure should usually only be made to the accused’s UK legal representatives. Foreign lawyers acting for the accused in the extradition proceedings will not normally be qualified to understand or participate in this process.

Duty of Candour

In order to ensure that the description of the alleged conduct and the strength of the evidence set out in the extradition request is accurate and fair, prosecutors should seek to review unused material before a request for extradition is submitted, or as soon as possible thereafter.

Once extradition has been requested, the prosecutor should continue to review unused material and the prospects of securing a conviction. This is important in all cases, but particularly where there is a significant delay between the extradition request being made and extradition. Unused material that comes to light after extradition has been requested should be reviewed as a matter of urgency and consideration given as to whether it is appropriate to maintain/withdraw the request.

Where information that significantly alters the basis of the prosecution case comes to light after the request has been made, if it is such as to weaken the prosecution case to the point where there is no longer a realistic prospect of conviction, the EAW or request should be withdrawn. If appropriate, the accused’s legal representatives in the UK and any victims/witnesses associated with the case should also be notified.

Disclosure of Extradition Papers/Material Generated by the Extradition process                                                                                           

Before extradition proceedings can be commenced, the accused must be located. This process will inevitably generate material which may amount to relevant prosecution material. It is therefore essential that copies of all such material are passed to the disclosure officer for consideration as to whether it is relevant and should be scheduled. In urgent cases, a request for the accused’s provisional arrest pending the submission of the full extradition documentation can be submitted through NCA or Interpol. This may also amount to relevant unused material and copies should be given to the disclosure officer for consideration.

An extradition request may be supported by a bundle of documentation complying with the requirements of the country concerned (the ‘extradition bundle’). It is likely that the EAW or extradition bundle will be disclosed to the requested person in the course of the extradition proceedings overseas. It will normally be necessary to schedule the EAW or extradition bundle as unused material because it will be relevant to demonstrating the basis upon which extradition was requested

Once an extradition request has been submitted (or an individual is arrested under an EAW), the authorities in the foreign territory concerned may ask for further details (‘further particulars’) about the case. Such requests should usually be responded to by the prosecutor in the case. Any such requests and responses should be passed to the disclosure officer for review and scheduling.                                                           

If extradition is ordered, arrangements will be made for the collection of the requested person by UK officers. Practices vary between countries as to whether, at the same time as the requested person is handed over into the custody of UK escort officers, (a) the EAW/extradition bundle (b) a copy of the order for extradition and / or (c) copies of any relevant judgments are also handed over. It will normally be necessary to schedule these documents as unused material because together they will show the basis upon which the foreign jurisdiction has agreed to the accused’s extradition.

To ensure that this happens, the UK escort officers should be instructed to obtain the documents set out immediately above when they collect the fugitive. Upon return to the UK, the escort officers should immediately forward those documents to the disclosure officer for inclusion in the unused material schedules. If those documents are not returned with the requested person, the escort officers should immediately inform the prosecutor, and the prosecutor should contact the relevant authorities in the extraditing country in order to obtain those documents for review and scheduling.

After Extradition

Speciality

Following extradition the requested person may only be dealt with for offences in respect of which they were extradited and cannot face proceedings for other offences that pre-date extradition (see sections 146 and 147 of the Extradition Act).

Therefore, in EAW accusation cases, the EAW should have set out all of the offences that the requested person will be prosecuted for. In conviction cases, the EAW should have referred to all offences the requested person has already been convicted of (in respect of which either the person has not yet been sentenced or has not yet completed a previously imposed sentence), including offences for which a suspended sentence has been imposed.

When the requested person has been returned prosecutors must ensure offences included on the indictment were included in the EAW. 

Continuing Offence

Speciality does not prevent a prosecutor from adducing evidence of conduct which falls outside the relevant time period to prove the commission of an offence which falls within it (GW v Serious Fraud Office [2018]).

Investigations

Investigative/pre-charge dealings with a suspect also fall outside the scope of the specialty provisions. The specialty provisions were not intended to cover situations where domestic police wish to arrest and interview a suspect following his return. Specialty provisions are to protect a surrendered person against a Member State circumventing the EAW scheme, and so protect against prosecution, sentencing, or carrying out a sentence that should have been included on the original EAW. A pre-charge interview is not an action for which surrender could be sought.

If, following the arrest and interview of a suspect upon return, a decision to charge is made, it is at this stage that the specialty provisions are engaged and a request for consent (below) would need to be made.

Bail Act Offences

In R v Seddon [2009] EWCA Crim 483 the court held that pursuing a Bail Act offence which had not been included in the EAW breached the specialty rule. Although a speciality waiver could be sought (see below), the court noted that the preferred approach was to include the reference to the Bail Act offence specifically as one of the extradition offences. The subsequent case of R v Jones (Royston) [2011] EWCA Crim 107, followed this approach in relation to the prosecution for a ‘fail to surrender’ which had not been included in the EAW.

Exemptions to Speciality

Under section 146 of the Extradition Act, 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 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 UK but fails to do so within 45 days or has left but returned to the UK;
  • 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.

Requested Person Waives Speciality

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.

Note that if a person is arrested under an EAW and consents to surrender, the person will also be asked if he agrees to waive his right to specialty. Subject to the law of the executing Member State this waiving of the specialty is irrevocable.

Offence Disclosed in EAW

Section 146(3)(b) Extradition Act provides that a person may be dealt with in the UK for an offence committed before extradition if the conduct was disclosed in the EAW when providing information regarding the extradition offences (for example ‘lesser offences’). In R v Seddon the court referred to ‘lesser included offences’ holding that if an EAW were issued for murder, the returned person could be prosecuted for GBH or ABH. In Leymann and Pustovarov (C-388/08 PPU) [2008] the European Court of Justice held that a careful consideration of the facts of a case 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. 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 refusal.

Consent of Executing Member State

Where it is necessary to prosecute an individual for offences not included the EAW, and no other exemptions apply, under section 146(3)(c) of the Extradition Act an application can be made the executing Member State to waive speciality. This application should be made using the EAW template to an appropriate judge and, if issued by the court, transmitted via UKICB. A decision on consent should be made within 30 days of receipt.

The executing Member State may ask for evidence of the requested person’s view of the application to waive speciality. This can most easily be obtained by listing the case before the trial court and having the issue of consent formally put to the person and the answers recorded. If consent is given then there is no need to continue as they will have waived speciality (see above). If consent is not given then the court record can then be forwarded (with a translation) via UKICB to the executing Member State.

Note it is advisable not to seek to remand the defendant on the new warrant until consent to prosecute is given (see Leymann and Pustovarov).

Given the Opportunity to Leave the UK

Section 146(4) of the Extradition Act outlines that if a person is given an opportunity to leave the UK, for example following an acquittal or a non-custodial sentence in respect of the offences for which surrender was ordered, then if the person fails to do so within the ‘permitted period’ (as defined in the Extradition Act) or does so and returns within that period, the person may then be dealt with for other offences that predated his extradition.

Person Acquitted or Not Tried

Under section 153 of the Extradition Act if proceedings are not commenced within six months of the requested persons arrival in the UK or the defendant is discharged / acquitted, then the Secretary of State must arrange for the requested person’s prompt return to the extraditing territory, provided that the requested person makes the necessary application within 3 months of either the 6 month period expiring, or the date of acquittal / discharge.

In this context, 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 the arrest and charge of the accused person; or the application for a summons or warrant in respect of the offence.

Crediting Periods of Remand during Extradition Process

If the wanted person is convicted following his extradition, prior to sentencing the domestic court will need to know the time spent in custody abroad during the extradition process.

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

Section 49(3A) of the Prison Act 1952 provides that if a person who was unlawfully at large has been extradited to the UK on an EAW for the purpose of serving a sentence, the Secretary of State must exercise his power to count the time spent in custody awaiting extradition against the sentence. However, only time spent in custody solely awaiting extradition can be credited. If the requested person was also held prior to extradition for another reason, for example, on a domestic charge, this will not be credited. In all other situations, in relation to EAW cases, time served in custody awaiting extradition must be counted against the UK sentence.

Further reading