A Guide To UK Extradition Law – Part 2

Bars To Extradition

As explained in the first part of this series, extradition is the formal process where one country asks another to return a person in order to stand trial or to serve a sentence. Because extradition strikes at the heart of citizenship and Statehood, in that it denies a person the cherished right of the protection of the country in which they enjoy citizenship, the decision to grant extradition is never taken lightly by the Courts or Secretary of State.

There are several circumstances in which legislation bars the Courts in England and Wales from granting extradition. 

Statutory bars to prosecution

The statutory bars to extradition include the following;

• Double Jeopardy – the Courts cannot extradite a person if they have already been prosecuted for the same offence;
• Absence of Prosecution Decision – the Prosecution’s case is not sufficiently advanced or is weak.
• Extraneous Considerations – the request for extradition is not due to a genuine motive and there is a significant risk of prejudice if extradition is granted;
• Passage of Time – allowing extradition would be unjust or oppressive in light of the amount of time that has passed since the offence or since the person has been unlawfully at large;
• Age (EAW and SAW cases only) – the person is too old or too young to have committed the offence;
• Hostage-taking Considerations (non-EAW/SAW cases only) – the requested person would be unable to talk or seek protection from authorities and the extradition offence falls under the Taking of Hostages Act 1982;
• Death Penalty (non-EAW/SAW cases only) – the requested person could be sentenced to death;
• Speciality - the requested person may be tried or punished for offences other than those for which they have been extradited;
• Earlier Extradition from Territory / by the International Criminal Court (‘ICC’) - the requested person was previously extradited to the UK from another country or by the ICC to serve a custodial sentence and no consent has been given by that country or by the ICC President for further extradition;
• Forum – in the interests of justice, the requested person should be prosecuted in the UK.

Human rights and extradition

One of the most common defences to extradition is that by returning a person to the requesting State, the UK would be breaching that person’s human rights. The leading case for breaches of art. 8 of the European Convention on Human Rights (ECHR) (the right to family and private life) is R (on the application of HH) v Westminster City Magistrates' Court [2012] UKSC 25. The case concerned conjoined appeals. In the first case, the Appellant mother (F) appealed against a decision to extradite her to Poland for dishonesty offences on the grounds that doing so would breach art. 8 given she had five children, two of whom were aged eight and three. The second case involved a mother and father convicted of drug crimes, who had fled Italy in breach of bail conditions. They had three young children.

The Supreme Court held:

1. The Court's approach to a case under the European Convention on Human Rights art.8 should not be radically different from extradition and expulsion cases. Consideration must be given as to whether the interference was in accordance with the law and pursued a legitimate aim; and whether the interference was necessary for the sense of being proportionate.
2. The test was whether the gravity of the interference was justified by the gravity of the public interest pursued. Previous case law had not decided that the art.8 rights of the family of a proposed extraditee could never prevail unless an exceptionality test was satisfied.
3. The effects on the Appellant’s children would be significant. And although the charges against them were serious, they were of no great gravity.
4. The Polish authorities exercised no discretion in considering extradition and there was a considerable delay in applying for it. In denying extradition, Lady Hale said

“If we were only concerned with the three oldest children, things would be different. They would be very unhappy at the loss of their mother and might suffer some educational setbacks as a result, but they would be able to get on with their lives with the help of their father, who is determined to keep the family together. They would be able to recall their mother while she was away, even if they were only able to see her rarely, and they would be able to look forward to her coming back. As Dr Armstrong points out, the consequences for the two youngest would be far more severe. E, in particular, would be deprived of her primary attachment figure while she is still under the age of four. Such losses can have lasting effects upon a child's development and it does not appear that her father would have the psychological resources to fill the gap or that help would be available from the social or other services to support the family. The eight-year-old would also suffer from the loss of her mother, might well blame herself for it, and would find it hard to look forward to her return. It is not an abuse of language to describe the effects upon these two children as exceptionally severe”. [para 44].

1. Unlike the case of F, the damaging effect of extraditing the parents was outweighed by public interest given the serious nature of the crimes and the fact that they had absconded whilst on bail. There was a very strong public policy consideration that professional criminals who broke bail conditions abroad should not find a safe haven in the UK. There were also concerns that the couple’s third child was conceived with the intention to avoid arrest. 

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 who have a considerable understanding of domestic and international criminal law to advise and represent you.

Take a look at Part One of this series here: A Guide To UK Extradition Law - Part 1