Extradition: processes and review
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.
Extradition is the formal process where one country asks another to return a person in order to stand trial or to serve a sentence. Under multilateral conventions and bilateral extradition treaties the UK has extradition relations with over 100 territories around the world.
Extradition from the UK: European arrest warrant (EAW)
Part 1 of the Extradition Act 2003 (the ‘2003 act’) implements the European Arrest Warrant (EAW) framework decision. The EAW applies to extradition between the following territories (designated as ‘category 1 territories’ under the 2003 act):
The process for extradition from the UK to these territories follows these steps:
- an EAW is submitted (usually electronically, by means of an alert placed on the Second Generation Schengen Information System known as ‘SISII’)
- certificate is issued (after a proportionality test is applied)
- initial hearing
- extradition hearing
In urgent cases a ‘requested person’ (the person a country is requesting be surrendered for prosecution or for punishment) can be arrested before the receipt of an EAW. The EAW must be received in time for a court hearing which must be held within 48 hours of the arrest.
The National Crime Agency (NCA) is the designated authority for EAWs and the UK SIRENE Bureaux for the purposes of EAW alerts under SISII.
Issuing a certificate
The NCA can only issue a certificate if the requirements of section 2 of the 2003 Act are met (including a proportionality test). Once issued the requested person can then be arrested and, once arrested, must be brought before a district judge at the magistrates’ court (or in Scotland, a sheriff at the sheriff’s court) as soon as practicable.
At the initial hearing the judge must:
- confirm the identity of the requested person (ie that the person brought before him or her is the person named on the warrant)
- inform the person about the procedures for consenting to his or her extradition
- 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 begin within 21 days of arrest.
The judge must be satisfied that the conduct described in the warrant amounts to an extradition offence (including, in almost all cases, the requirement that the conduct would amount to a criminal offence were it to have occurred in the UK, and minimum levels of severity of punishment), and that none of the statutory bars to extradition apply. These bars are:
- rule against double jeopardy
- the absence of a prosecution decision (whether the prosecution case against the accused is sufficiently advanced)
- extraneous considerations (whether the request for extradition is improperly motivated)
- passage of time
- the requested person’s age
- speciality (the requested person must only be dealt with in the requested state for the offences for which they have been extradited)
- onward extradition (where the requested person has previously been extradited to the UK from a third county, and consent for onward extradition from that country is required but has not been forthcoming)
- forum (whether it would be more appropriate for the requested person to be prosecuted in the UK instead)
The judge must also decide if extradition would be disproportionate or would be incompatible with the requested person’s human rights. If the judge decides it would be both proportionate and compatible, extradition must be ordered.
Appeals: High Court (High Court of Judicature in Scotland)
If either the requested person or the requested state to the extradition proceedings is unhappy with the judge’s decision at the extradition hearing, they may ask the High Court for leave (permission) to appeal. An application for permission to appeal must be made within 7 days of the relevant decision being made (ie an order for extradition or an order discharging the extradition case against the requested person). If the High Court grants permission, it will go on to consider the appeal.
If the High Court allows an appeal brought by the requested person, it will quash the order for extradition and order the person’s discharge. If the High Court allows an appeal brought by the requesting state, it will quash the order discharging the person and will send the case back to the magistrates’ or sheriff’s court for a new decision to be taken.
Appeals: Supreme Court
In England, Wales and Northern Ireland, a party who is unhappy with the decision of the High Court on appeal can ask for permission for a further, final appeal to the Supreme Court. Permission can either be given by the High Court or by the Supreme Court itself. An appeal to the Supreme Court can only be made where the case involves a point of law of general public importance. If permission is granted, the Supreme Court will hear the appeal.
In Scotland, the Supreme Court will only hear an extradition case where it involves a ‘devolution issue’.
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 the UK: category 2 territories
Part 2 of the 2003 act applies to territories with whom the UK has international extradition arrangements, other than those countries included in part 1. Territories designated under part 2 of the 2003 act are known as category 2 territories, these can be further broken down into 2 further categories. The category 2 territories are:
|Andorra||Faroe Islands||Monaco||Sint Eustatius|
|Aruba||Greenland||New Zealand||South Africa|
|Azerbaijan||Hong Kong SAR||Republic of Korea||Turkey|
|Bosnia & Herzegovina||Liechtenstein||Saba||United States of America|
|Canada||FYR Macedonia||San Marino|
|Algeria||Ecuador||Maldives||South Georgia & the South Sandwich Islands|
|Anguilla||El Salvador||Mauritius||Sovereign Bases Areas of Akrotiri & Dhekalia|
|Antigua & Barbuda||Falkland Islands||Mexico||Sri Lanka|
|Belize||Guatemala||Panama||Trinidad & Tobago|
|Bermuda||Guyana||Papua New Guinea||Turks & Caicos Islands|
|British Antarctic Territory||Jamaica||Pitcairn, Henderson, Dulcie and Oeno Islands||United Arab Emirates|
|British Indian Ocean Territory||Kenya||St Christopher and Nevis||Vanuatu|
|Brunei||Kiribati||St Helena, Ascension & Tristan de Cunha||(British) Virgin Islands|
|Cayman Islands||Kosovo||St Lucia||(Western) Samoa|
|Chile||Lesotho||St Vincent & the Grenadines||Zambia|
|Cook Islands||Libya||Sierra Leone|
Requests from these territories need decisions by both the Secretary of State and the courts.
The extradition process to these territories follows these steps:
- extradition request is made to the Secretary of State
- Secretary of State decides whether to certify the request
- judge decides whether to issue a warrant for arrest
- the person wanted is arrested and brought before the court
- preliminary hearing
- extradition hearing
- Secretary of State decides whether to order extradition
Requesting states are advised to submit an initial draft request to the Crown Prosecution Service (CPS) or, in the case of Scotland, to the Crown Office and Procurator Fiscal Service (COPFS) extradition team, so that any potential problems can be resolved.
Issuing a certificate
When an extradition request is made to the International Criminality unit (ICU) at the Home Office, the request will be valid if extradition is stated to be for the purpose of prosecuting or punishing a person accused or convicted of an offence in a category 2 territory, and if the request is made by an appropriate authority on behalf of that territory. Where these basic criteria are fulfilled the Secretary of State certifies the request and sends it to the courts. Where the person is believed to be in Scotland, Scottish Ministers certify the request.
Issuing a warrant
If the court is satisfied that enough information has been supplied, an arrest warrant can be issued. The court must be satisfied that there are reasonable grounds for believing that the conduct described in the request is an extradition offence (which includes the requirement for dual criminality). 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 an authenticated copy)
- if someone is unlawfully at large after conviction of an offence: a certificate of the conviction and sentence (or an 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
Arrest and preliminary hearing
After the person has been arrested he is brought before the court and the judge sets a date for the extradition hearing.
The judge must be satisfied that the conduct amounts to an extradition offence (dual criminality), none of the bars to extradition apply, where applicable, there is prima facie evidence of guilt (in accusation cases), and whether extradition would breach the person’s human rights.
If the judge is satisfied that all of the procedural requirements are met, and that none of the statutory bars to extradition apply, he or she must send the case to the Secretary of State for a decision to be taken on whether to order extradition.
Appealing judge’s decision: High Court
The judge’s decision whether to send a case to the Secretary of State can be appealed. The requested person can ask for permission to appeal the judge’s decision to send the case to the Secretary of State. Any application for permission must be made to the High Court, within 14 days of the date of the judge’s decision. However the High Court will not hear the appeal unless and until the Secretary of State orders the requested person’s extradition (see below).
If the District Judge orders the requested persons discharge, the requesting state can ask the High Court for permission to appeal that decision. Again, any application for permission to appeal must be made within 14 days of the judge’s order. If the High Court grants permission it will go on to consider the appeal. If the High Court allows the appeal, it will quash the order discharging the requested person and send the case back to the District Judge for a fresh decision to be taken.
Secretary of State’s decision
The Secretary of State must order extradition unless the surrender of a person is prohibited by certain statutory provisions in the 2003 Act. The requested person may make any representations as to why they should not be extradited within 4 weeks of the case being sent to the Secretary of State. The Secretary of State is not required to consider any representations received after the expiry of the 4 week period.
Extradition is prohibited by statute 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 or, if imposed, will not be carried out)
- 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 have been extradited (except in certain limited circumstances)
- the person has already been extradited to the UK from a third state or transferred from the International Criminal Court and consent for onward extradition is required from that third state or that Court (unless the Secretary of State has received consent)
If none of these prohibitions apply, the Secretary of State must order extradition. Or, if surrender is prohibited, the person must be discharged.
The Secretary of State has to make a decision within 2 months of the day the case is sent, otherwise the person may apply to be discharged. However, the Secretary of State can apply to the High Court for an extension of the decision date. More than one extension can be sought if necessary.
Appealing Secretary of State’s decision: High Court
Appeal is only possible with the leave (permission) of the High Court. Notice of application for leave to appeal must be sought within 14 days of extradition being ordered by the Secretary of State or discharge being ordered by the Secretary of State. Any appeal by the requested person against the decision of the judge to send the case to the Secretary of State will be heard at the same time as the appeal against the Secretary of State’s order, assuming permission is granted.
Appealing High Court decisions: Supreme Court
A requested person, or a requesting State, can apply for leave to appeal to the Supreme Court against the High Court’s decision. Notice of application for leave to appeal must be given within 14 days of the High Court decision. Permission can be granted either by the High Court or by the Supreme Court itself. Appeals to the Supreme Court can only be made if the High Court has certified that the case involves a point of law of general public importance.
Extraditing a requested person
Unless there is an appeal, a requested person must be extradited within 28 days of the Secretary of State’s decision to order extradition (subject to any appeal).
Extradition from the UK: other territories
Even if the UK has no extradition arrangement or treaty with a particular territory, it may still be possible or for that territory to make an extradition request to the UK. Incoming requests are made to the ICU. The Secretary of State then decides whether to enter into ‘special extradition arrangements’.
Extradition to the UK
Outgoing extradition requests to countries other than those which operate the EAW system (ie category 1 territories) fall outside the scope of the 2003 act and are made under the royal prerogative. ICU at the Home Office forwards extradition requests that have been prepared by the prosecuting authorities in England and Wales and Northern Ireland (eg CPS, Serious Fraud Office or Public Prosecution Service Northern Ireland) to the requested state through the diplomatic route.
The COPFS deals with Scottish outgoing extradition requests, these are also transmitted to the requested State through diplomatic channels.
An outgoing request can either be:
- a full order request (ie a request which fully complies within the requirements of the relevant treaty or other international arrangement with the requested state)
- a request for provisional arrest - this is made when someone is known to be in a particular country but where there is insufficient time to prepare a full request, because the person is deemed to be a flight risk
Where a request for provisional arrest is accepted, the person will usually be arrested in the requested state 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 or other arrangements governing extradition arrangements with that state. ICU liaises with the relevant prosecuting authority to make sure the papers are delivered in enough time for ICU to dispatch them.
Bringing a requested person back to the UK
Once a requested person is available for surrender, ICU 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. ICU will forward the officers’ travel arrangements to the relevant British Embassy or High Commission and can provide a letter of introduction for officers, which will allow them to bring the requested person back.
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, but usually have provisions in place that mean that although they will not extradite their own nationals, they may be prepared to prosecute them.
Extradition Act 2003
European arrest warrant framework decision
Extradition codes of practice
SISII council decision
House of Lords Select Committee on extradition law - extradition: UK law and practice (10 March 2015)
Government’s Response to the House of Lords report (20 July 2015)
Review of the United Kingdom’s extradition arrangements (September 2011)
Government’s response to the review (16 October 2012)
European Judicial Network (EJN) – A network of practitioners from EU member states
Committee of experts on the operation of european conventions on co-operation in criminal matters (PC-OC) – A Council of Europe committee of experts in international co-operation in criminal matters
Mutual legal assistance requests
List of extradition and MLA agreements