Extradition

A territory may not be designated as a Category 1 territory if the death penalty is retained under the general criminal law of that country.

Category 1 territories are covered by Part 1 of the Act and deal with the European Arrest Warrant (‘an EAW’).

Following Brexit, the UK is no longer part of the EAW framework but as of 1 January 2021 there is a new arrangement between the UK and EU countries which provides a streamlined extradition process.

There also remains in place certain transitional arrangements for EAW cases where an arrest has taken place on or before 31 December 2020. Such cases will continue to follow the old EAW framework. If an EAW was issued before 31 December 2020 but no arrest has been made, it will be recognised as a valid warrant and will follow the new procedures.

In pursuit of a successful extradition from the UK to a Category 1 territory the following steps take place:

• An EAW is submitted by the requesting state
• A Certificate of authorisation is issued by the National Crime Agency (‘NCA’), provided that certain criteria are met (including a proportionality test)
• The requested person is arrested
• An initial hearing takes place at Westminster Magistrates’ Court
• A final extradition hearing takes place

This is the full list of Category 1 Territories:

Applications for extradition relating to Category 2 territories are subjected to a different process in that both the Secretary of State and the court become involved.

Type A and Type B Countries

Category 2 territories are divided into type A and type B countries.

The key difference is that type A countries are not obliged to adduce prima facie evidence in support of their application for extradition.

Type A countries most notably include USA, Australia, Canada, Israel, New Zealand, Russian Federation, Serbia, South Africa and Switzerland. This is the full list of Category 2 (Type A) Territories:

Type B countries must provide evidence of a prima facie case in support of their extradition request.

For a full list of Type B countries, please follow this link: Type B territories.

Extradition To The USA

The USA is a Category 2 Type A country and we have expertise in defending such extradition requests.

For further details and analysis of recent Extradition Requests from the USA please follow this link.

The Process

Extradition requests from Category 2 countries are made to the Secretary of State and must:

• State the request is for the purpose of prosecuting or punishing a convicted or accused person and
• Is being made by an appropriate authority on behalf of that territory

If these criteria are fulfilled, the Secretary of State will certify the request and forward the same to the court.

The court will review the request and, if satisfied that the required information has been supplied, it will issue an arrest warrant.

To satisfy a court, it will need to be satisfied that the extradition request also includes:

• Details of the requested person;
• Details of the offence of which the requested person stands accused or convicted;
• If accused – proof of a warrant for arrest or provisional arrest;
• If convicted – proof of conviction and sentence;
• Evidence of information that justifies the issue of a warrant for arrest in the UK.

Extradition requests from Category 2 countries are made to the Secretary of State and must:

• State the request is for the purpose of prosecuting or punishing a convicted or accused person and
• Is being made by an appropriate authority on behalf of that territory

If these criteria are fulfilled, the Secretary of State will certify the request and forward the same to the court.

The court will review the request and, if satisfied that the required information has been supplied, it will issue an arrest warrant.

To satisfy a court, it will need to be satisfied that the extradition request also includes:

• Details of the requested person
• Details of the offence of which the requested person stands accused or convicted
• If accused – proof of a warrant for arrest or provisional arrest
• If convicted – proof of conviction and sentence
• Evidence of information that justifies the issue of a warrant for arrest in the UK

The court must:

• Verify that the correct person is before the court and is the same person as named on the warrant
• Explain the extradition procedure to the requested person including the process for consenting to or opposing the extradition application. If the requested person consents to the extradition, that person will be removed from the UK to the requesting state
• Set a date for the final extradition hearing if the requested person indicates opposition to the extradition application
• Consider the issue of bail

If the requested person does not consent, an extradition hearing will take place.

The court will consider issues such as whether the offence:

• Is an ‘extradition offence’
• Carries a minimum level of punishment
• Amounts to an offence in the UK

In reaching its decision, the court must be satisfied that none of the statutory bars to extradition applies.

In the event of an Extradition Order being made, the requested person may put forward representations to the Secretary of State within four weeks of referral to the Home Secretary, time being of the essence.

In extradition proceedings, permission can be sought to appeal:

The District Judge’s decision to refer the matter to the Secretary of State

Both the requested person and the requesting state are entitled to appeal. The appeal is to the High Court and must be lodged within fourteen days of the District Judge’s decision to refer the matter to the Secretary of State. However, the High Court will only consider the appeal if the Secretary of State orders extradition to take place.

The Secretary of State’s decision to make an Extradition Order 

The application must be served on the High Court within fourteen days of the Extradition Order being made.

If permission is granted, the High Court will consider the appeal as well as any appeal that was made against the District Judge’s decision to refer the matter to the Secretary of State.

The High Court’s decision

If the High Court upholds the Secretary of State’s decision, the requested person, or the requesting state can apply to the High Court (or the Supreme Court) for permission to appeal the decision within fourteen days.

An application through this route can only be made if the High Court certifies the case as being one which involves a “point of law of general public importance”.

If the Extradition Order is not opposed or the appeals fail, the requested person will be extradited from the UK within twenty-eight days of the Order being made.

• Lapse of time resulting in proceedings being oppressive or unfair
• As a result of the age of the requested person, that person could not be guilty of the offence
• The rule against double jeopardy – being prosecuted for the same offence twice
• The Prosecution case against the requested person is not sufficiently crystallised or advanced
• Extradition is being sought by the requesting state for improper or ulterior motives causing unfairness and prejudice to the requested person
• Forum – whether a UK prosecution would be more preferable
• Onward extradition where consent of the original country is still outstanding
• Hostage Taking Considerations (applies only to non EAW cases)
• Death Penalty (applies only to non EAW cases)
• Lack of Speciality arrangements with the requesting country resulting in the possibility that the requested person could be indicted for offences other than those for which extradition was originally sought

In addition to the above, the court must consider:

• Any human rights issues which could influence the decision to extradite
• In relation to EAW cases, where the requested person is wanted for trial, the principle of proportionality i.e. whether or not extradition is disproportionate based on the seriousness of the allegations, the likely penalty if convicted and whether or not the requesting state could take lesser measures

The USA is a Category 2 Type A country and we have expertise in defending such extradition requests.

For further details and analysis of recent Extradition Requests from the USA please follow this link.

The Process

Extradition requests from Category 2 countries are made to the Secretary of State and must:

• State the request is for the purpose of prosecuting or punishing a convicted or accused person and
• Is being made by an appropriate authority on behalf of that territory

If these criteria are fulfilled, the Secretary of State will certify the request and forward the same to the court.

The court will review the request and, if satisfied that the required information has been supplied, it will issue an arrest warrant.

To satisfy a court, it will need to be satisfied that the extradition request also includes:

• Details of the requested person
• Details of the offence of which the requested person stands accused or convicted
• If accused – proof of a warrant for arrest or provisional arrest
• If convicted – proof of conviction and sentence
• Evidence of information that justifies the issue of a warrant for arrest in the UK

If the court is satisfied that:

• The conduct described amounts to an extradition offence (dual criminality)
• There is prima facie evidence of guilt (in cases where the requested person has not as yet been convicted in a Type B territory)
• None of the bars to extradition applies and
• Extradition would not breach the requested person’s human rights

The case will be referred to the Secretary of State for a decision on whether or not an Extradition Order should be issued.

As long as there are no statutory prohibitions against making an Order, the Secretary of State must order the requested person’s extradition.

If statutory prohibitions are applicable, the Secretary of State will order the requested person to be discharged.

The Secretary of State is prohibited by statute from making an Extradition Order in circumstances where:

• The requested person could face the death penalty in the requesting state (unless the requesting state gives the appropriate assurance that such a penalty will not be imposed or actioned)
• The case involves onward extradition where consent of the original country or the International Criminal Court is still outstanding
• The requesting state has no speciality arrangements in place

The Secretary of State’s decision must be made within two months of referral, failing which the requested person can apply for discharge, although the Secretary of State does have the power to apply to the High Court to extend the deadline for issuing a decision.

Pursuant to the Extradition (Provisional Arrest) Act 2020 (‘EPA Act 2020’), a person is liable to provisional arrest before an extradition request has been lodged with the UK authorities if certain criteria are met.

The rationale is that such powers will be used in urgent cases where there has not been time to prepare a full extradition request but time is of the essence as the requested person is deemed to be a flight risk.

If such emergency powers are invoked and the requested person is arrested, the requesting state must submit a full extradition request following the arrest within the prescribed time limits.

The Procedure For A Provisional Arrest

The requesting state can make a request to the UK authorities for a provisional arrest in urgent cases.

An Interpol Red Notice must be issued by a territory listed in Schedule A1 of the EPA Act 2020.

The NCA must review the Red Notice and, if appropriate, certify it.

Once certified, the provisional arrest can be made without a warrant for extradition purposes for serious offences for the countries listed in Schedule A1.

Category 2 countries listed in Schedule A1 of APA 2020 include:

• USA, Australia, New Zealand, Canada, Switzerland, Iceland, Norway and Lichtenstein.