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Extradition - a brief guide

23 December 2021
Criminal
Extradition

Extradition from the UK - The Law Explained

Brexit has led to a change in the law surrounding extradition. Many of the original principles remain, but the UK's relationship to EU countries has changed.

The law on extradition continues to be covered by Extradition Act 2003, albeit amendments have been made to reflect the change in the relationship between the UK and the EU. Historically a distinction could be made between countries which were part of the European Arrest Warrant (EAW) system and those which were not. However, the UK's exit from the EAW has changed this.

The new system basically places countries in different baskets. Countries which are part of the EAW are called "Category 1 Territories". Countries with whom the UK has formal agreements, but which were outside of the EAW, are called "Category 2 Territories".

Can someone be extradited to a European Country from the UK?

The law on extradition with these countries largely remains the same as it was under the EAW system. These countries can issue a warrant for an arrest which is issued via Interpol. Such warrants can be issued either because a person is accused of an offence, or where they have been convicted of an offence but are yet to serve their sentence. The UK will then consider the proportionality of the request (basically whether or not it is a fair and reasonable request) before acting upon the request and seeking to arrest the relevant person.

Extradition remains an easier process for these countries because no evidence of the alleged offence has to be provided. The request must provide details of the identity of the person whose extradition is requested, and details of the offence (s). It can only be issued for offences of a certain level of seriousness. For cases where the person is only accused, the offence has to be one which carries a maximum sentence of at least 1 year in prison in the relevant state. For cases where the person has been convicted and sentenced, the sentence has to be one of at least 4 months in prison in the requesting state.

That person is then placed before an extradition court held at Westminster Magistrates' Court in London for an initial hearing. This must take place within 48 hours of the arrest. A person can consent to extradition. If, however, they do not give their consent then an extradition hearing should normally take place within 21 days of the arrest.

What are reasons a court may refuse to extradite someone?

There are several bars to someone being extradited. ‘Bars' are reasons for a court to refuse to extradite the person.

These ‘bars' include:

  • If returning to face proceedings in the foreign state will result in double jeopardy - this means facing proceedings for the same offence twice.

  • Passage of time - where so much time has passed since the original offence that it is unfair or oppressive to proceed against a defendant.

  • Age - where the defendant would have been under the UK age of criminal responsibility when the original offence took place.

This list is not exhaustive and it is important to always seek earlier guidance from specialist extradition solicitors.

What are 'hostage taking considerations' in extardition law?

Where the client has already been extradited from another country, consent may be needed before extradition from the UK can take place.

Extraneous considerations - this means when the proceedings in the foreign state are actually a cover for an ulterior motive, or where the person will be disadvantaged during the foreign proceedings because of that same ulterior motive, for example, racial or political victimisation.

Further aspects a judge must consider

If a person was convicted in their absence can they still be extradited?

Although putting someone on trial in their absence is quite rare in the UK, it happens more often elsewhere in the EU. This means that extradition requests are sometimes made following a person being convicted and sentenced without having been present at their trial. In those cases, the person can't be extradited unless they will have the right to a retrial in the foreign state.

Compatibility with the Human Rights Act 1998

This means that extraditing the person must not be disproportionately in breach of his or her human rights as laid out in the European Convention on Human Rights. These rights include the right to a fair trial, protection from torture or inhuman treatment, the right to respect for family life etc.

What is the Dual Criminality Test in extradition law?

The 'dual criminality test' means that the offence for which the person is extradited must be an offence in the UK as well as in the foreign state, unless it is one of a list of 32 specified serious offences which are considered to be crimes in all countries (for example, murder, drug trafficking etc.). If the offence is on that list, the ‘ seriousness' test is increased to a maximum sentence of at least 3 years in prison (where the person is merely accused) or an actual sentence of at least 12 months in prison (where the person has been convicted and sentenced).

Can I appeal against a decision for me to be extradited from the UK?

The extradition solicitors for either side in these cases can appeal the magistrates' court's decision to the High Court. A final appeal can go to the Supreme Court but only in cases where there is a ‘ point of law of general public importance'. This usually means where the legal issue is one that could change the way the law works for other cases in the future.

Category 2 Territories - Treaty Countries

There are two further categories of case. Each requires the agreement of both the court and the UK's Home Secretary. For both categories the following must be proved:

  • The identity of the person

  • The details of the offence

The fact that either an arrest warrant has been issued or that the person has been convicted in the foreign state

The first category, known as Type A countries includes European countries which aren't part of the European Arrest Warrant system (for example Norway and Croatia), and also many non-European countries including Canada, the US, Australia, New Zealand, South Africa and Russia. These countries do not have to show the strength of the case against the person, but must provide details of the case in the foreign country.

In the second category, known as Type B countries, which includes extradition treaty countries from farther away in areas such as Africa, Asia, South and Central America, and the Caribbean, the judge has to be satisfied that there is a prima facie case. This means that the case is strong enough to require an explanation from the defendant or, put another way, that a court would be entitled to reach a guilty verdict on the prosecution's evidence if no defence were put forward. Extradition cases involving this category of country (which includes, for example, Jamaica, Morocco, Egypt, Nigeria, India, Pakistan, and Thailand) can be fought on the strength of the evidence. The UK court must be persuaded that the case against the defendant has some real basis before extraditing. In this scenario, extradition solicitors who have experience of fighting criminal cases is advantageous.

Of course, the usual bars to someone being extradited apply, including the rule against double jeopardy, and extraneous concerns. Human rights issues, and the so-called ‘ dual criminality test' may also prevent extradition from the UK.

The Home Secretary's power to overturn a court's decision to extradite

If the court has authorised extradition, in respect of Category 2 territories, the Home Secretary must consider whether to allow extradition. He or she must consider whether the death penalty may be given in the foreign country, and if so must refuse extradition unless the country gives reassurances that the death penalty will not be used. The Home Secretary will also refuse extradition unless he or she is sure that there are rules in the foreign country to stop the person from being tried for any extra offences which weren't included within the extradition request.

Will the court give me bail in an extradition case?

There is a presumption in favour of bail in extradition proceedings where there has not yet been a conviction in the foreign country. The foreign country (usually represented by the CPS), will often try to prevent this, by making objections in court on the basis of the likelihood that the person will not attend. Because there is often an accusation that the person has ‘ escaped justice' in the original country, this may be quite persuasive to a judge. Because of this, evidence of ties to the UK and their family life here can be particularly important. The court will also often require security (a cash deposit paid into court) before considering allowing bail.

Generally, the same rules for bail as in criminal cases apply.  Read more information on bail here.

In cases where the person has already been convicted in the foreign state, bail may be more difficult to obtain.

Appeals made by Extradition Solicitors to the High Court and Supreme Court

If a person is ordered to be extradited at the magistrates court stage, that person has a right of appeal to the High Court. In some cases, the person may have a right of appeal to the Supreme Court, but permission, called ‘leave to appeal', is required.

A final note

Extradition proceedings, particularly given recent changes in the UK's position, can appear to be a minefield. While this guide sets out the basis position, it is no substitute for seeking early advice from extradition solicitors.

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