What is Extradition?
Extradition is the formal surrender of a person by one State to another State for prosecution, sentencing or punishment. State sovereignty ordinarily confers legal authority on state bodies to prosecute crimes and offences committed within their territory.
If a crime is committed within a territory but the offender is no longer physically present, extradition provides the means for States to extend their jurisdiction by seeking the return or surrender of a person to that territory for the purpose of prosecution (or imprisonment if already sentenced).
The UK (England and Wales) makes ‘import' extradition requests and allows ‘export' extradition requests subject to certain conditions. The basic framework is set out below.
The Legal Basis for Extradition
The theoretical basis for extradition is territoriality which means that the requesting State must first have territorial jurisdiction over the alleged offence before a request can be made to another State for a transfer of the offender. Generally, treaties exist between States to facilitate this process; under English law an extradition treaty, convention or agreement is a prerequisite to extradition.
The Extradition Act 2003 governs extradition in the UK; EU member states that are part of the European Arrest Warrant system are classed as Category 1 territories while all other territories are classed as Category 2.
The Extradition Process - Category 1 Territories
Extradition from the UK (England and Wales) to Category 1 territories requires that a Category 1 territory issues a European Arrest Warrant ("EAW") on the basis that a person is either accused of a crime and wanted for the purposes of prosecution, or that they have already been sentenced for an offence and are wanted for the purposes of serving the sentence of imprisonment.
The EAW has to then be received by the designated authority, the Serious Organised Crime Agency, who then have to look at the EAW and certify that it was issued by a Judicial Authority that has the function of issuing EAWs. Once SOCA have certified the EAW, the person becomes liable for arrest.
If the correct individual has been arrested, they must be brought to Westminster Magistrates' Court as soon as is practicable following arrest, for the first appearance, where the Court will expect issues to be identified and will set a timetable of service of evidence and arguments prior to the Extradition Hearing.
At the extradition hearing, if the court is satisfied that the person has been accused of an extraditable offence and that there is no bar to extradition, no breach of any fundamental human rights or other statutory grounds to discharge the person from the proceedings, it will order the extradition of the person to the Category 1 territory. If the person does not appeal the decision within the allotted time for giving notice of an appeal, the individual must then be surrendered within 10 days.
Extraditable offences are generally offences that carry minimum sentences of 12 months in the requesting State in respect of accusation EAWs and that have received a sentence of more than 4 months in respect of EAWs for people already sentenced for an offence.
Common bars to extradition include the rule against double jeopardy, extraneous conditions, passage of time, conviction in absence, physical or mental health conditions, and the potential breaches of a person's rights as defined in the European Convention on Human Rights.
The Extradition Process - Category 2 Territories
Extradition from the UK (England and Wales) to Category 2 territories requires that decisions are made both by the Secretary of State and the City of Westminster Magistrates Court. The Secretary of State issues the certificate and sends the request to the court which may then issue a warrant for the person's arrest.
At the extradition hearing the court must consider a number of issues and be satisfied that the request is valid and it contains the required information such as the particulars of the offender and offence. The case is sent back to the Secretary of State for a final decision.
In surrendering a person, the Secretary of State must consider whether the person is likely to face the death penalty, whether or not the person is likely to be charged with other offences in the requesting territory and whether the person had been extradited to the UK previously.
Notice of an appeal against a Part 1 extradition order must be given within 7 days of an extradition order and within 14 days of a Part 2 extradition order. The person has a statutory right to appeal to the High Court but only to the Supreme Court if leave to appeal is granted. An extradition must take place within 10 days of the final order for Category 1 territories and within 28 days for Category 2 territories.