The Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community of the One Part and the United Kingdom of Great Britain and Northern Ireland, of the Other Part (‘Trade and Cooperation Agreement’), agreed on 24 December 2020, replaces the previous surrender arrangements under the Framework Decision on the European Arrest Warrant (‘the Framework Decision’). Implemented by the European (Future Relationship) Act 2020 and the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019, the new arrangement closely mirror their predecessor. The new arrangements will not apply to any arrest or provisional arrest made before the date on which they came into force (11pm on 31 December 2020) and any European Arrest Warrants (EAWs) issued under the Framework Decision before that date will now be treated as arrest warrants under the new surrender arrangements.
The following sections explain how extradition works under Part 1 of the Extradition Act 2003 from initial arrest through to appeal. Part 1 is used for extradition from the UK to the Member States of the European Union, namely:
Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Gibraltar, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden
For more information on the changes brought about by the Trade and Cooperation Agreement see our section Brexit.
Arrest warrants received from an issuing State with a view to the arrest and surrender by the UK of a requested person under Part 1 must be certified by the National Crime Agency (NCA). An arrest warrant can be certified if the NCA is satisfied that it was issued by a judicial authority with the function of issuing arrest warrants in the Part 1 territory.
The arrest warrant must contain, either:
- A statement that the subject of the request is wanted in the requesting territory for the offence(s) specified in the warrant and for the purpose of being prosecuted for that offence;
- Particulars of the individual’s identity;
- Particulars of any other warrant issued in the Part 1 territory for the person’s arrest in respect of the offence; and
- Particulars of the circumstances of the offence.
- A statement that the subject of the request has been convicted in the requesting territory for the offence(s) specified in the warrant and the request is issued for the purpose of their serving a sentence of imprisonment or other form of detention;
- Particulars of the individual’s identity;
- Particulars of the conviction;
- Particulars of any other warrant issued in the Part 1 territory for the person’s arrest in respect of the offence if the individual has not been sentenced for the offence; and
- Particulars of the sentence which has been imposed under the law of the Part 1 territory in respect of the offence, if the person has been sentenced for the offence.
In 2015 a proportionality filter was introduced into the Extradition Act 2003, in relation to EAWs for accused persons (as distinct from persons already convicted). In such cases, the NCA must not certify the arrest warrant if it is clear that a judge would order the person’s discharge on the basis that extradition would be disproportionate. The Lord Chief Justice has issued guidance to the NCA on the types of cases that would fall into this category.
Article 77 of Title VII of Part 3 of the Trade and Cooperation Agreement, in a departure from the Framework Decision, makes express provision for the principle of proportionality to apply to all surrender arrangements, both in the case of accusation and conviction warrants.
A constable, customs officer or policeman may arrest a person without a warrant if they have reasonable grounds to believe that an arrest warrant has been or will be issued for the person. This is known as ‘provisional arrest’.
Service of an arrest warrant or provisional warrant
A copy of the arrest warrant or the provisional arrest warrant does not need to be given to the requested person at the time of the arrest, but must be provided to him as soon as practicable thereafter.
If the requested person applies for discharge on the basis that he has not been provided with a copy of the arrest warrant or provisional warrant as soon as practicable, the extradition judge may order his discharge.
3. Initial Hearing
Initial hearing following provisional arrest
A person arrested under a provisional arrest warrant must be brought before the court within 48 hours of their arrest and a certified extradition request and a certificate in respect of the warrant must be produced to the extradition judge. If either of these documents is not produced, the judge may extend this period by up to 48 hours if they conclude, on the balance of probabilities, that the documents could not reasonably have been obtained within the original 48 hours.
Proceedings at the initial hearing
At the initial hearing, the extradition judge must decide, on the balance of probabilities, whether the person brought before him is the person in respect of whom the relevant warrant was issued.
If they conclude this is the case, they must:
- fix a date for the extradition hearing within 21 days of the date of the requested person’s arrest;
- inform the requested person of the contents of the arrest warrant;
- give the requested person information about his ability to consent to extradition; and
- remand the requested person in custody or on bail.
A requested person may consent to his extradition. For consent to be effective it must be recorded in writing and the requested person must be legally represented (or have had the opportunity to apply for legal aid and failed to do so or had legal aid refused). Consent is irrevocable and it will lead to an immediate order for extradition within 10 days. There is no right to appeal the order for extradition. A requested person who consents to extradition will still be protected by the rule of specialty, which means that he can only be prosecuted for the offence for which he is extradited.
The District Judge has the power to adjourn the initial hearing. The District Judge must adjourn the initial hearing if he is informed that the requested person is charged with an offence in the UK, and may also do so if the requested person is in custody serving a sentence of imprisonment or another form of detention in the UK.
The court can grant bail for the duration of the proceedings including any appeal. There is a presumption in favour of bail for an accused person but not for a convicted person.
Bail can be refused if the court considers that there are substantial grounds to believe that the requested person might fail to surrender to custody, commit an offence while on bail or interfere with witnesses and those risks cannot be adequately dealt with by bail conditions.
Bail conditions can include the surrender of travel documents, residence at a specific address, regular reporting to a local police station, a curfew with an electronic tag, and the requirement to provide a surety or security.
An appeal can be made to the High Court if bail is refused or to vary bail conditions. The requesting judicial authority can also appeal a decision to grant bail.
5. Extradition Hearings
The District Judge must confirm that the offence specified in the arrest warrant is an extradition offence. This means either that the offence must be one of double criminality, such that the conduct in question would amount to a criminal offence were it to have occurred in the UK, or that it is an offence listed in Article 79(5) of Title VII of Part 3 of the Trade and Cooperation Agreement, which replicated the ‘Framework List’ of offences (with minor amendment to state that corruption includes bribery) for which double criminality may be waived; and that it is serious enough to reach a minimum punishment threshold.
The court must then consider whether any statutory bars to extradition apply, whether extradition would be contrary to the requested person’s human rights, or whether the requested person should be discharged on any other grounds (See ‘Bars to extradition’)
After the extradition hearing
Both the extradition order, and an order discharging a person, may be subject to appeal. An appeal must be lodged with the High Court and served on the respondent within 7 days starting on the day on which extradition or discharge is ordered (see ‘Appeals’).
Where there is no appeal, the person must be extradited to the requesting State within 10 days of either the expiry of the seven day notice period or such later date as the court and the requesting authority may agree.
Where the requested person makes an unsuccessful appeal against an order for his extradition, he must be extradited to the requesting State within 10 days of either the day the appeal was dismissed or such later date as the court and the requesting authority may agree.
6. Bars to Extradition
Statutory bars to extradition
At the extradition hearing The District Judge must consider whether extradition is prohibited by any of the statutory bars to extradition, including:
- rule against double jeopardy: the rule against a person facing criminal proceedings for the same offence twice;
- absence of a prosecution decision: whether no decision to either charge or put the accused on trial has been made in the requesting State;
- extraneous considerations: whether the prosecution is motivated, for example, by the requested person’s race, religion, nationality, gender, sexual orientation or political opinion;
- passage of time: whether so much time has passed since the offence was committed that it would be unfair or oppressive to prosecute the requested person;
- specialty: whether there are arrangements in place with the requesting State to ensure that the requested person is not prosecuted there for any offence other than for which he was extradited;
- forum: whether it would not be in the interests of justice to extradite the requested person for activity that took place substantially in the UK and could potentially be prosecuted here.
Extradition must be refused if it would be incompatible with the requested person’s rights under the European Convention on Human Rights (ECHR). Arguments under this ground include:
Article 3: the prohibition on torture, inhuman or degrading treatment. Extradition can be refused if, for example, prison conditions in the requesting State are so poor as a result of over-crowding, lack of hygiene and healthcare, violence and other factors to amount to inhuman or degrading treatment.
Article 5: the right to liberty and security of person. Extradition can be refused if, for example, the requested person would be detained arbitrarily or indefinitely on return to the requesting State.
Article 6: the right to a fair trial. Extradition can be refused if there is a real risk of a flagrant denial of justice in the requesting State.
Article 8: the right to a private and family life. Extradition can be refused if the impact on the requested person’s private and family life, including the impact on his family and dependents, would be so great that extradition would be disproportionate.
Proportionality, re-trial rights and asylum applications
Extradition can be refused if it would be disproportionate, for example, if the offence or likely penalty is trivial or other, less coercive measures than extradition are possible. Article 77 of Title VII of Part 3 of the Trade and Cooperation Agreement introduced an overarching principle of proportionality to apply to all surrender arrangements between the UK and the EU, both in the case of accusation and conviction warrants
Right to a re-trial if convicted in absence: provided that the requested person did not deliberately absent himself from the criminal proceedings in the requesting State, if he was convicted in his absence, the judge must be satisfied that he will have a right to a retrial if extradited, including the rights to legal representation and to examine the witnesses against him. If not, extradition will be refused.
Asylum claims: extradition usually will be refused if the requested person has been granted asylum in respect of the requesting State. Extradition proceedings may be adjourned if there is an asylum claim which has not yet been determined.
Article 83 of Title VII of Part 3 of the Trade and Cooperation Agreement introduces an optional nationality bar to extradition whereby the UK or the EU on behalf of any Member State may notify the Specialised Committee on Law Enforcement and Judicial Cooperation that the State’s own nationals will not be surrendered or that their surrender will be authorised only under certain specified conditions. This notification option mirrors that contained in Article 85 of the UK-EU Withdrawal Agreement, under which notifications were made by Germany, Austria and Slovenia as a consequence of their constitutional bar on extraditing nationals for which a specified carve-out was created for the EAW regime. Any such notification must be based on the fundamental principles or practice of the State’s domestic legal order.
Assurances by the issuing State
The Trade and Cooperation agreement makes provision for the giving of guarantees or assurances by the issuing State, in a case where:
- the offence to which the arrest warrant relates is punishable by a custodial life sentence or a lifetime detention order, that the penalty will be reviewed either on request or at the latest after 20 years, or will encourage the application of any measures of clemency to which the requested person is entitled;
- an arrest warrant is issued for a national or resident of the executing state, that the person is returned to the executing State after sentence to serve any sentence of detention imposed by the issuing State;
there are substantial grounds for believing there is a risk of breach of the requested person’s fundamental rights, that guarantees are given as to their treatment.
Following an order for extradition on an arrest warrant (unless it was by consent), a requested person has 7 days from the date of the order to apply for permission to appeal to the High Court by lodging a notice of appeal. An appeal may be brought on a question of law or fact but the permission (leave) of the High Court must be obtained.
If a requested person is discharged at the extradition hearing, the requesting authority has 7 days from the date of the order to apply for permission to appeal to the High Court by lodging a notice of appeal. This appeal can be brought on a question of law or fact but lies only with the leave of the High Court.
If the requesting authority indicates an intention to appeal at the hearing where the requested person is discharged, the judge must decide whether to remand him in custody or on bail while the appeal is pending.
The High Court can extend the time for lodging an appeal if the requested person did everything reasonably possible to ensure that the notice was given as soon as it could be given. No extensions can be given to the requesting authority.
A requested person should not be removed from the UK pending an appeal. However, if he is mistakenly removed from the UK, this does not extinguish his right of appeal.
Part 50 of the Criminal Procedure Rules (CrimPR) sets out detailed requirements relating to extradition appeals.
Notice of application to appeal
The notice of appeal:
- must be in writing;
- must specify the date of the appellant’s arrest;
- must specify the decision under appeal, including the date of the decision;
- must identify each ground of appeal;
- must summarise the relevant facts;
- must identify any document or material upon which the appellant relies, and
- must include or attach a list of the parties on whom the notice of appeal has been served.
Grounds of appeal
The grounds of appeal should identify the question of fact or law concerned and explain what decision the District Judge should have made, and why. It is not usually possible to raise new arguments or introduce new evidence at the appeal stage. If the appeal concerns arguments or evidence not raised at the extradition hearing, the appeal notice must identify those arguments or evidence, explain why they were not raised previously and how they might have altered the court’s decision.
A respondent to the appeal is permitted to make representations on whether permission to appeal should be granted. This must be served no more than 10 business days after service of the notice or an amended appeal notice.
Permission to appeal
The High Court can grant leave to appeal without a hearing (‘on the papers’). However, the application can be renewed at an oral hearing if permission is refused. If the Court grants permission, it will identify the grounds on which leave to appeal is granted. It will also give directions (instructions) to get the case ready for hearing. For example, it might order evidence, and written arguments, to be served prior to the hearing.
High Court appeal hearing
The High Court may allow the appeal from the requested person if it decides that the District Judge at the extradition hearing should have decided matters differently or there is new evidence or an argument raised which would have resulted in the judge deciding matters differently. If it allows the appeal, it will discharge the individual.
If it allows an appeal by the requesting authority, it will quash the discharge and send the case back (remit) to the extradition judge for a new decision to be made.
Leave to appeal to the Supreme Court
It is possible to appeal to the Supreme Court against the decision of the High Court but only on a point of law of general public importance, never on a question of fact.
The High Court or the Supreme Court can grant permission to appeal, although it is very rare for the High Court to do this. The application must be made orally and immediately after the High Court’s decision, or in writing within 14 days of the date of the decision and served on all parties, identifying the point of law of general public importance and why it ought to be considered by the Supreme Court. The 14 day period cannot be extended by the High Court.
Supreme Court appeal hearing
The Supreme Court has the same powers as the High Court on appeal (see ‘High Court appeal hearing’ above)
Appeal to the European Court of Human Rights
Once all domestic appeal routes have been exhausted the requested person can make an application to the European Court of Human Rights (“ECtHR”) for interim measures against their removal pending a decision on whether extradition would breach his human rights. This will only be granted in exceptional circumstances. The application for interim measures should include the decision of the final domestic court and set out the basis on which the applicant has grounds to believe that his rights under the ECHR will be breached.