Extradition is the surrender of an alleged criminal by one State or Nation to another having jurisdiction over the crime charged.
International extradition is usually carried out pursuant to the terms of a treaty between two countries.
All extradition in the UK is covered by the Extradition Act 2003 , which makes a distinction between extradition to countries which are part of the European Arrest Warrant system, and to other countries which have separate extradition treaties, such as the USA.
The process of extradition from the UK can happen very quickly. People have settled lives with their families in the UK and that can start to change with little or no warning. To fight against this can be very stressful and makes it a good idea to have the assistance of specialist extradition solicitors who can bring calm to the situation by knowing the best steps to take.
In some cases, where the extradition is political, this is especially important.
European Arrest Warrant Countries
All European countries which are members of the European Union can issue a European Arrest Warrant (EAW), which makes the process of extradition easier for the country asking for the person to be extradited because no evidence of the alleged offence has to be provided.
An EAW can be issued where a person is accused of an offence or where he or she has been convicted of an offence but hasn’t served the sentence yet.
The EAW has to 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 EU 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 EU state.
European Arrest Warrant cases are often difficult to fight, as the strength of the case against the detained person is irrelevant.
Hostage taking considerations
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, ethnicity or political victimisation.
Further aspects a judge must consider
Conviction in absence
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 EAWs are sometimes issued 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.
The Dual Criminality Test
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).
Reasons a court may not extradite
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.
Appeals against extradition 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.
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 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, which includes extradition treaty countries from further 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.
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 decision
If the court has authorised extradition, in cases where there is no European Arrest Warrant, 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.
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.
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.
At Virgo Consultancy Services Ltd we can advise and assist you with all aspects of Extradition Law and we can call on a team of leading experts and seasoned professionals to represent you and advocate on your behalf in the Courts here or abroad.