COVID-19 - We are open for business and here to help

14-01-2022 Written by wilford-smith Category: Blog Criminal Defence Immigration

What is Extradition?

Extradition is the formal process of a State surrendering one of its citizens to be tried in a Court of law or punished by a foreign State in which they committed crimes. The extradition process enables governments to bring fugitives abroad to justice, but it can be fraught with political tension, even when a treaty is in place. 

The foundations of extradition law

UK extradition law is based on a mixture of international treaties, European law, and domestic law. The first extradition treaty between the UK and a third country was concluded in 1794, with the Treaty of Amity, Commerce and Navigation between the United States of America and the United Kingdom for the extradition of those charged with murder or forgery, known as the Jay Treaty. The first example of domestic legislation came in the form of the Extradition Act 1870.

At the time of writing, the governing legislation is the Extradition Act 2003 (the Act), which came into force on 1 January 2004 with the aim of simplifying and expediting the extradition process.

The three main types of extradition relationships the UK has with third states manifest themselves in Part 1, Part 2 and section 193 of the 2003 Act.  Part 1 governs extradition to “Category 1” territories, Part 2 to “Category 2” countries and s.193 to countries with which the UK has relevant treaty relations.

Category 1 territories encompass all the territories designated by the Secretary of State under Section 1 of the Act. Territories are used because not all are countries, for example, Gibraltar. All Category 1 territories fall under the EU’s European Arrest Warrant Scheme (EAWS). Following the coming into force of the UK-EU Trade and Cooperation Agreement (TCA) and the UK leaving the EU at 11 pm on 31 December 2020, a new extradition warrant called the Arrest Warrant (AW) was created. The AW is largely consistent with what is operated under the EAWS.

Category 2 States encompass countries with which the UK has regular extradition relations. For example, the UK may be a party to a bilateral extradition treaty or the other States is a party to the European Convention on Extradition 1957 or members of the London Scheme for Extradition within the Commonwealth. In most cases, there must be prima facie evidence of guilt for successful extradition to Category 2 States. And unlike Category 1 extraditions where there is no Executive involvement, the final decision in Category 2 cases rests with the Secretary of State.

If a country does not fall into Category 1 or 2 then an application for extradition must meet the requirements laid down under Section 193 or 194. The former applies where the UK and the requesting territory are both parties to a specified treaty, the latter where extradition takes place on an ad hoc basis. 

What is the extradition process?

The Crown Prosecution Service’s (CPS) Extradition Unit can arrest a person in England and Wales on the basis of:

  • An EAW (or SAW from Norway/Iceland) certified by the NCA under section 2 of the Extradition Act 2003; or
  • A provisional arrest on behalf of an EU Member State (or Norway or Iceland) under section 5 of the Extradition Act 2003; or
  • An extradition request that has been certified by the Home Office and a warrant that has been issued by a domestic court under section 71 Extradition Act 2003; or
  • A provisional request for extradition that has been received by domestic law enforcement and an arrest warrant that has been issued by a domestic court under section 73 of the Extradition Act 2003.

Every request for extradition will trigger proceedings. When deciding whether a person should be extradited to the requesting country, the Court will consider if:

  • the conduct described in the warrant amounts to an extradition offence;
  • any of the statutory bars to extradition apply;
  • there is prima facie evidence of guilt; or
  • extradition would be disproportionate or would be incompatible with the requested person’s human rights.

In EAW, or SAW, cases the Court can either discharge the case or order extradition. In all other cases the Court can:

  • discharge the case, or
  • send the case to the Home Office to consider extradition.

Final words

Extradition law is highly unsettled due to the political and media attention the subject to extradition often receives. Therefore, it is imperative to have a highly experienced legal team to advise and represent you.

In Part Two of this series on extradition law, we will examine the bars to extradition, including the human rights of the person subject to the extradition.