Extradition processes and agreements between the UK and other countries, role of the Secretary of State, High Court and Supreme Court and the extradition review
Thanks to multilateral extradition conventions and agreements, and bilateral treaties, the UK has extradition relations with over 100 territories around the world.
The process of extraditing someone from the UK is different depending on which ‘territory’ or country is making the request.
Extradition from the UK: European arrest warrant (EAW)
Part 1 of the Extradition Act 2003 implements the framework decision on the European arrest warrant (EAW).
EAW extradition partners
Category 1 territories are:
- Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Gibraltar, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden
The extradition process to these territories follows these steps:
- an extradition request is made
- a certificate is issued
- initial hearing
- extradition hearing
- dual criminality test
In urgent cases a ‘requested person’ (the person a country wants to extradite) can be arrested before the receipt of an extradition request. The EAW must be received in time for a court hearing to be held within 48 hours of the arrest.
Issuing a certificate
If the warrant has been issued by a judicial authority in the requesting territory, a certificate can be issued by the UK authority.
The documentation can only be certified if the requirements of section 2 of the 2003 Act are met. If the requested person has been convicted, the documentation must make it clear that the person is ‘unlawfully at large’ (liable to immediate arrest and detention).
The requested person can then be arrested and brought before a court.
At the initial hearing the District Judge must confirm, on the balance of probabilities:
- the identity of the requested person
- inform the person about the procedures for consent
- fix a date for the extradition hearing if the requested person does not to consent to his or her extradition
The extradition hearing should normally take place within 21 days of arrest.
If the judge is satisfied that the conduct amounts to an extradition offence, and that none of the bars to extradition apply, he must then decide if the person’s extradition is compatible with the convention rights within the meaning of the Human Rights Act 1998.
If compatible, the judge must order the extradition.
Dual criminality test
‘Dual criminality’ means that for someone to be extradited, their alleged conduct has to be a criminal offence in both the surrendering and the requesting state.
There is a list of 32 categories of offence for which the dual criminality test is not needed. The offence must carry a maximum sentence of at least 3 years in the requesting state.
If the offence isn’t covered in this list, it must be an offence in both the surrendering and requesting state. Also, if the conduct was carried out outside the requesting state, it must be an offence in both the issuing and executing states.
Appeals: High Court
An appeal must be lodged within 7 days of an extradition being ordered.
The requested person can appeal to the High Court against their extradition, and the requesting state can appeal against the discharge of someone they have requested extradition for.
Appeals: Supreme Court
A High Court decision can be appealed in the Supreme Court, as long as leave to appeal has been given.
An appeal to the Supreme Court can only be made on a point of law of general public importance and where the High Court decides the point should be considered by the Supreme Court.
Surrender of a requested person
The person should normally be extradited within 10 days of the final court order. This time limit can be extended in exceptional circumstances, and with the agreement of the requesting state.
Extradition from UK: process under Part 2 of the act
Part of 2 of the act covers category 2 territories, which are:
- Albania, Algeria, Andorra, Antigua and Barbuda, Argentina, Armenia, Australia, Azerbaijan, The Bahamas, Bangladesh, Barbados, Belize, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Brunei, Canada, Chile, Colombia, Cook Islands, Croatia, Cuba, Dominica, Ecuador, El Salvador, Fiji, The Gambia, Georgia, Ghana, Grenada, Guatemala, Guyana, Hong Kong Special Administrative Region, Haiti, Iceland, India, Iraq, Israel, Jamaica, Kenya, Kiribati, Lesotho, Liberia, Libya, Liechtenstein, Macedonia (FYR), Malawi, Malaysia, Maldives, Mauritius, Mexico, Moldova, Monaco, Montenegro, Nauru, New Zealand, Nicaragua, Nigeria, Norway, Panama, Papua New Guinea, Paraguay, Peru, Russian Federation, Saint Christopher and Nevis, Saint Lucia, Saint Vincent and the Grenadines, San Marino, Serbia, Seychelles, Sierra Leone, Singapore, Solomon Islands, South Africa, Sri Lanka, Swaziland, Switzerland, Tanzania, Thailand, Tonga, Trinidad and Tobago, Turkey, Tuvalu, Uganda, Ukraine, the United Arab Emirates, the United States of America, Uruguay, Vanuatu, Western Samoa, Zambia and Zimbabwe
Requests from these states need decisions by both the Secretary of State and the courts. The Secretary of State has no influence over the time it takes for a case to clear the judicial stages, and time a case takes to complete can vary depending on how complex the case is.
The extradition process to these territories follows these steps:
- an extradition request is made to the Secretary of State
- the Secretary of State issues a certificate and sends request to court (if request is valid)
- preliminary hearing
- extradition hearing
- Secretary of State decides on extradition
After the extradition hearing and the Secretary of State’s decision a requested person may be able to appeal to the High Court, and if that is unsuccessful, to the Supreme Court.
Extradition requests: what’s required
When an extradition request is made to the Secretary of State if it’s ‘valid’, the Secretary of State will issue a certificate and send the request to the court.
The request will be valid if it is for a person accused or convicted of an offence, and if it’s made by an appropriate authority, such as a diplomatic or consular representative.
Documents needed to make a request
Generally the information accompanying a request needs to include:
- details of the person
- details of the offence of which they are accused or convicted
- if the person is accused of an offence - a warrant for their arrest or provisional arrest (or a duly authenticated copy)
- if someone is unlawfully at large after conviction of an offence – a certificate of the conviction and sentence (or a duly authenticated copy), or for provisional arrest, details of the conviction
- evidence or information that justifies the issue of a warrant for arrest in the UK, within the jurisdiction of a judge of the court that would hold the extradition hearing
If the court is satisfied that enough information has been supplied, an arrest warrant can be issued.
Requesting states are advised to submit an initial draft request to the Crown Prosecution Service (CPS), so that any potential problems can be resolved.
Supporting evidence: exempted countries
The following countries don’t need to provide prima facie evidence in support of their extradition request:
- 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 US
After the person has been arrested, he is brought before the court and the judge sets a date for the extradition hearing.
During the extradition hearing the judge must satisfy himself that:
- the request meets the requirements of the 2003 Act, including dual criminality and prima facie evidence of guilt (where appropriate)
- none of the bars to extradition apply (passage of time, hostage-taking or extraneous considerations)
- the extradition is compatible with the convention rights within the meaning of the Human Rights Act 1998
Secretary of State: considerations with extradition requests
When a case is sent to the Secretary of State she must consider whether the surrender of a person is prohibited. It would be prohibited if:
- the person could face the death penalty (unless the Secretary of State gets adequate written assurance that the death penalty will not be imposed)
- there are no speciality arrangements with the requesting country – ‘speciality’ requires that the person must be dealt with in the requesting state only for the offences for which they’re being extradited (except in certain limited circumstances)
- the person had already been extradited to the UK – this might mean the Secretary of State needs consent from the earlier extraditing country before extraditing on to the requesting state
If none of the 3 prohibitions apply, or if appropriate assurances have been given, the Secretary of State must order the extradition. Or, if surrender is prohibited, the person must be discharged.
Representations for the defence
The defence has to make any representations within 4 weeks of the case being sent to the Secretary of State (28 days including the day it was sent).
The Secretary of State has to make a decision within 8 weeks of the day the case is sent, otherwise the person may be discharged.
But the Secretary of State can apply to the High Court for an extension of the decision date if the representations are complex and enquiries need to be made of the requesting state.
To date, no extensions have been refused by the High Court. They are usually for no longer than 2 months, and more than one extension can be sought if necessary.
Appeals: the High Court
Appeals can be made to the High Court within 14 days by:
- a requested person - if the district judge has sent the case to the Secretary of State, who then orders the extradition
- a requesting state - if a requested person has been discharged by the judge at the extradition hearing and subsequently by the Secretary of State (after the case has been sent to them by the district judge)
Appeals: the Supreme Court
A requested person, or a requesting state, can appeal to the Supreme Court against the High Court’s decision, if leave to appeal has been granted.
Appeals to the Supreme Court can only be made on a point of law of general public importance – where that’s been agreed by the High Court. The details and time limits of these appeals are set out in section 114 of the 2003 Act.
Surrendering a requested person
Unless there is an appeal, a requested person should be extradited within 28 days of the Secretary of State’s decision.
If there is an appeal, the 28 days begin once all legal remedies have been exhausted. This time limit can be extended in exceptional circumstances, but reasonable cause must be shown for any delay.
Extradition to the UK (outgoing requests)
The Home Office certifies and forwards extradition requests that have been prepared by the prosecuting authorities, to the British Embassy, or High Commission in the requested state.
The Crown Office and Procurator Fiscal Service deals with Scottish outgoing extradition requests.
Requests that are made by most of the Crown Dependencies and British Overseas Territories are submitted through the Foreign and Commonwealth Office (FCO).
Submitting outgoing requests to diplomatic posts
All outgoing extradition requests must be submitted via diplomatic channels (the British Embassy or High Commission).
An outgoing request can either be:
- a Full Order request - submitted in the requested state before the arrest of the person
- a provisional arrest - this is made when someone is known to be in a country, but is regarded as a flight risk
The police or prosecuting authority will liaise with Interpol London, to issue a request for their arrest.
The provisional arrest is carried out before extradition papers are formally submitted. When someone is provisionally arrested there is a deadline within which the papers must be submitted. This deadline is set out in the treaty that governs extradition arrangements with that state.
The Home Office will then need to liaise with the relevant prosecuting authority in England and Wales and Northern Ireland to make sure the papers are delivered in enough time for the Home Office to dispatch them.
Bringing a requested person back to the UK
Once a requested person is available for surrender, the Home Office will be notified by the British Embassy or High Commission, or the police will be notified by Interpol.
The police – usually from the force where the original arrest warrant was issued - then collect and escort the requested person back to the UK.
The escorting officers should contact the Home Office for a letter of introduction, which will allow them to bring the requested person back. The Home Office will also forward the officers’ travel arrangements to the relevant British Embassy or High Commission.
Special arrangements where there is no extradition treaty
Even if there is no formal extradition treaty with a country, it may still be possible to make an extradition request.
The Home Office liaises with that country via the FCO, to find out if their domestic law allows for extradition, and if so, what documents are needed.
Sometimes a one-off arrangement has to be in place before a request can be processed. In effect this involves negotiating a mini-treaty, known as a ‘special arrangement’.
Extradition of UK nationals
The UK will, as a matter of policy, extradite its own nationals, providing no bars to extradition apply.
Some countries are not permitted to extradite their own nationals. Though they often have provisions in place that mean that although they will not extradite their own nationals may be prepared to prosecute them on behalf of the UK.
On 16 October 2012 the Home Secretary announced the government’s response to Sir Scott Baker’s independent review of the UK’s extradition arrangements. The Home Secretary’s oral ministerial statement to the House and the government’s response to Sir Scott Baker’s recommendations are available in Command Paper 8458.
As promised by the Home Secretary, a copy of the evidence supplied to the review panel also been published as follows:
- copies of the consultations invited by the panel - it should be noted that not all the organisations invited by the panel to make representations and listed in annex A of the report chose to do so, we have published all those representations that were received except those that have been published elsewhere
- copies of the transcripts of the oral evidence sessions
- copies of responses to the public consultation exercise - those representations received from contributors who did not wish for their submissions to be published have been withheld
- copies of public views which were submitted
In due course, we will also be publishing details of all the information which is not published here, but which was considered by the Review Panel in reaching their conclusions.
Extradition Act 2003
On 1 January 2004, the Extradition Act 2003 came into force. Requests made on or after 1 January 2004 are dealt with under the 2003 Act.
However, with the exception of Gibraltar, unless or until the Crown dependencies and British Overseas Territories amend their legislation, the Extradition Act 1989 (the legislation repealed by the Extradition Act 2003) will still apply to them. Currently, only Jersey has enacted its own extradition legislation.
On 15 January 2007, certain amendments to the 2003 Act were given effect in the UK by [Schedule 13 of the Police and Justice Act 2006.[(http://www.legislation.gov.uk/ukpga/2006/48/schedule/13). Further amendments to the 2003 Act were given effect on 12 November 2009 by Part 6 of the Policing and Crime Act 2009.
This guide does not explain the extradition procedures for Scotland, which, because of its separate legal system, are slightly different from those for the rest of the UK. A separate guide to Scottish procedures is available on the Crown Office and Procurator Fiscal website. Northern Ireland’s extradition proceedings are broadly similar to those for England and Wales, and are administered by the Home Office and SOCA.
A copy of the Statutory Instruments (SIs) designating category 1 territories can be found on the Office of Public Sector Information website. The relevant SIs are: 2003 No. 3333; 2004 No. 1898; 2005 Nos. 365 and 2036; 2006 No. 3451 and 2007 No. 2238.
Copies of the SIs designating category 2 territories can be found on the Office of Public Sector Information website. The relevant SIs are 2003 No. 3334; 2004 No. 1898; 2005 Nos. 365 and 2036; 2006 No. 3451, 2007 No. 2238; 2008 No. 1589 and 2010 No. 861.
For more information, contact ExtraditionPolicySection@homeoffice.gsi.gov.uk