Extradition processes and agreements between the UK and other countries, role of the Secretary of State, High Court and Supreme Court.
Applies to England, Northern Ireland and Wales
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.
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 UKCA. The Secretary of State then decides whether to enter into ‘special extradition arrangements.’
Extradition from the UK: category 1 territories
Extradition and the UK’s exit from the European Union
Following the end of the Transition Period on 31 December 2020, the UK is no longer part of the European Arrest Warrant (EAW) framework. A new agreement between the UK and the European Union (EU) which allows for streamlined extradition warrant-based arrangements (similar to the EU’s surrender agreement with Norway and Iceland) came into effect on 1 January 2021.
The following transitional arrangements are in place for existing EAW cases:
Article 62 of the Withdrawal Agreement applies to existing EAWs, where an arrest has already taken place on an EAW before 11pm on 31 December 2020. In these cases, the extradition process will continue to follow the EAW framework.
The rules for EAWs issued before the end of the Transition Period where no arrest has taken place are set out in Title VII (Surrender) of the UK-EU Trade and Co-operation Agreement. If an EAW has been issued but no arrest has been made, it will constitute a valid warrant under the new arrangements.
Part 1 of the Extradition Act 2003 (the ‘2003 Act’), and the 2003 Act as amended by the Future Relationship Act, implements the EAW and the arrangements under Title VII (Surrender) of the UK-EU Trade and Co-operation Agreement.
These Agreements apply to extradition between the following territories (designated as ‘category 1 territories’ under the 2003 Act):
Category 1 territories
The process for extradition from the UK to these territories follows these steps:
- a warrant is submitted by the requesting state (usually electronically, via Interpol)
- certificate is issued by the relevant UK authority (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 a warrant. The warrant 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 category 1 cases.
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)
If none of the bars apply, the judge must next 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 (i.e. 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.
For Scottish cases, 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.
Extradition from the UK: category 2 territories
Part 2 of the 2003 Act applies to territories with whom the UK has formal arrangements through the European Convention on Extradition, the Commonwealth Scheme or a bilateral treaty. These territories are separated into two types, A & B. Type A countries are not required to provide prima facie evidence in support of their requests for extradition, whilst those in Type B are still required to do so.
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 by the requesting state to the Secretary of State
- Secretary of State decides whether to certify the request
- Secretary of State sends the case to the court
- 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 following departments so that any potential problems can be resolved at the outset:
- for England and Wales, Crown Prosecution Service (CPS)
- for Scotland, the Crown Office and Procurator Fiscal Service (COPFS) extradition team
- for Northern Ireland, the Crown Solicitor’s Office
Issuing a certificate
When an extradition request is made to the UK Central Authority (UKCA) 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.
When making extradition requests to the UKCA, requesting States are advised to use theas part of the formal 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 (for Type B territories) or information (for Type A territories) 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 extradition hearing before the District Judge is where most of the issues in the case are decided. The CPS will represent the requesting State in the proceedings.
The judge must be satisfied that the conduct amounts to an extradition offence (dual criminality), that there is prima facie evidence of guilt (where applicable and in accusation cases), and that none of the bars to extradition apply, including that extradition would not breach the person’s human rights.
Appealing judge’s decision: High Court
The judge’s decision whether to send a case to the Secretary of State can be appealed within 14 days of being notified of the 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 person’s discharge, the requesting State can ask the High Court for permission to appeal that decision. Any application for permission to appeal must be made within 14 days of the judge’s decision. 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.
For urgent cases where a requested person is deemed to be a flight risk and insufficient time is available to prepare a full request, a requesting State can make a provisional arrest request. Where this is accepted, the requested person can be arrested before the formal extradition request is submitted. Subsequent to arrest, the requesting State must submit the full order request within the time limit specified by law.
The Extradition (Provisional Arrest) Act 2020 allows for the provisional arrest (i.e. arrest without warrant) of people, for extradition purposes, for serious offences for specified countries listed in Schedule A1 of that Act.
The power of a provisional arrest under the 2020 Act arises once an Interpol Red Notice or Red Diffusion issued by a territory listed on Schedule A1 of the 2020 Act has been reviewed and, if considered appropriate, certified by the NCA. Certification by the NCA is therefore required before an arrest or provisional arrest can be made.
Specified Category 2 Territories listed on Schedule A1 of the 2020 Act:
- New Zealand
- United States
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 UKCA. The Secretary of State then decides whether to enter into ‘special extradition arrangements’.
Extradition to the UK
European Union Member States
Extradition warrants issued under the mechanisms outlined within the EU-UK Trade and Cooperation Agreement are processed under Part 3 of the Extradition Act 2003.
Outgoing extradition requests to territories outside of the scope of the 2003 Act are made under the Royal Prerogative.
The UKCA at the Home Office forwards extradition requests that have been prepared by the prosecuting authorities in England and Wales and Northern Ireland (e.g. CPS, Serious Fraud Office or Public Prosecution Service Northern Ireland) to the requested state through the diplomatic route.
The Crown Office deals with Scottish outgoing extradition requests, and 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. The UKCA liaises with the relevant prosecuting authority to make sure the papers are delivered in enough time to meet the deadline.
Bringing a requested person back to the UK
Once a requested person is available for surrender, the UKCA will be notified by the British Embassy or High Commission, or the police will be notified by Interpol.
Officers from the National Extradition Unit will make arrangements to collect and escort the requested person back to the UK. The UKCA 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.
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
List of extradition and MLA agreements