Part 2 Requests (Rest of the World)

The following sections explain how extradition works under Part 2 of the Extradition Act 2003 from the initial arrest to the process of appealing an extradition order.

Part 2 of the Extradition Act 2003 applies to countries, other than those covered by Part 1 (at present the Member States of the European Union), with whom the UK has formal extradition arrangements such as a bilateral treaty or multilateral convention, for example the USA, Russia, India and Switzerland. They are known as Category 2 territories and a list of them can be found here.

The Extraditon Act 2003 also allows for extradition between the UK and countries which are not Category 1 or Category 2 territories where both countries are parties to an international Convention relating to specific forms of criminal conduct, for example terrorism, torture or crimes against aircraft. A list of such countries and conventions can be found here.

There is also a power for the Secretary of State to agree ad hoc extradition arrangements with any country that does not have existing extradition arrangements with the UK.

The power to issue and receive Part 2 requests is exercised by the State therefore it requires the involvement of the Secretary of State (the Home Secretary) as well as the courts.

1. Certification of an extradition request by the Secretary of State

The Secretary of State must receive all extradition requests under Part 2 of the Extradition Act 2003. The Secretary of State (in reality, a team of civil servants within the Home Office) must then consider whether the request can be certified and sent to the court to enable an arrest warrant to be issued.

An extradition request must be in English (or have an English translation) and state whether it is for the purposes of prosecuting the requested person (an accusation case) or for him to serve a sentence (a conviction case) for an offence within the requesting State. It must be made by an appropriate authority on behalf of that State and contain:

  • details of the requested person;
  • details of the offence;
  • if the person is accused of an offence, an authenticated copy of the warrant for their arrest or provisional arrest;
  • if someone is unlawfully at large after conviction, an authenticated copy of the certificate of the conviction and sentence;
  • the evidence or information that justifies the issue of a warrant for arrest in the UK.

The Secretary of State must confirm that the offence is an extradition offence under the Act and confirm the extradition request is in order. If it is, the Secretary of State will certify the request and send it to the court.

The Secretary of State may refuse to issue a certificate, for example, if there are competing requests for extradition or the requested person is a refugee or has been granted leave to enter or remain in the UK because removal to the requesting State would be a breach of Article 2 or 3 of the ECHR.

2. Request to judge for issue of a warrant

On receipt of the certified extradition request, the court must be satisfied that it has enough information to justify the issue of an arrest warrant. This includes ensuring that there are reasonable grounds for believing that the conduct described in the request is an extradition offence and that it complies with the requirements of dual criminality, i.e. the conduct described would have constituted an offence if it had taken place in the UK.

The court must also be satisfied that there is evidence which would justify the issue of a warrant if the offence had taken place in the UK, namely that there are reasonable grounds to suspect that an offence has been committed. For countries designated by Order, the court need only confirm it has been provided with sufficient information. Designated countries include states like the Russian Federation) who need provide ‘information’ rather than ‘evidence’ to satisfy the test for the issuing of an arrest warrant (see below).

3. Arrest and production at court

If the relevant information is supplied and accepted by the judge, the court will issue an arrest warrant.

The warrant will be sent to the Metropolitan Police’s Extradition Squad who will look to identify and locate and arrest the requested person. It may be possible to make arrangements to surrender to the police if it is known that a warrant is in existence.

Once an arrest warrant is issued and the requested person is detained, they will be produced at an extradition hearing as soon as possible after arrest.

The court will consider at the first hearing whether basic procedural requirements have been met such as confirming the identity of the requested person. The court will also ask the person if he or she consents to extradition (see ‘Consent’) as well as deciding whether to grant bail (see ‘Bail’).

4. Bail

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 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 State can also appeal a decision to grant bail.

5. Consent

A requested person may consent to his extradition. Consent is irrevocable and it must be given in writing to the judge (if the case is before the court) or the Secretary of State.

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). If a person consents to extradition, it should take place within 28 days of when the Secretary of State orders extradition but this period can be extended. There is no right to appeal an order for extradition that was consented to.

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.

6. Extradition Hearing

All extradition hearings are held at Westminster Magistrates Court in London, before a specially designated District Judge. The extradition hearing must begin within two months of the initial hearing. It is common practice for a judge to start the extradition hearing before the end of the required period and then adjourn so, in practice, the final hearing at which all evidence and arguments are presented takes place up to 12 months after the initial hearing, depending on the complexity of the case.

In an accusation case, where the person is wanted for prosecution, the judge must also consider whether there is sufficient evidence to demonstrate that there is a case for them to answer (a prima facie case). This will apply for states such as India and Nigeria (non-designated states). However the prima facie test does not apply if the requesting State has been designated by Order of the Secretary of State. Designated states include those who are parties to the Council of Europe’s Convention on Extradition, such as the Russian Federation, as well as other states such as Australia, Canada and the United States. In such cases, the court will confirm that the person arrested and detained is the person named on the warrant and that the requisite information has been provided by the issuing state. A full list of designated and non-designated states can be found here.

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’).

7. Bars to Extradition

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;
  • extraneous considerations: whether the prosecution in the requesting State 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 is 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.

8. Additional Bars

Physical or mental condition: if the requested person’s physical or mental condition makes it unjust or oppressive to extradite the person;

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. 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;

Abuse of process: the extradition proceedings will be discharged if they constitute an abuse of the court’s process, for example due to bad faith on the part of the requesting State;

Criminal proceedings in the UK: if a person is charged with an offence in the UK, the extradition proceedings must be adjourned until the UK proceedings have concluded. However, if a person is under investigation but not yet charged, the extradition proceedings will continue

Prison sentence in the UK: the proceedings may be adjourned until after a sentence of detention has been served.

9. Human Rights

Extradition must be refused if it would be incompatible with the requested person’s human 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 barred 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 barred if, for example, the requested person would be detained arbitrarily or indefinitely on return to the requesting State.

Article 8: the right to a private and family life. Extradition can be barred 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.

It should be noted that there is a rebuttable presumption (i.e. an assumption that is taken to be true unless contrary evidence is produced) that a State which is signatory to the ECHR will not breach its obligations. Further, even where there is compelling evidence that a requested person’s human rights might be breached if they are returned, for example because they will be exposed to prison conditions which breach Article 3 ECHR, a requesting State may offer diplomatic assurances suggesting that there is no risk in this particular case. For example, a State might present diplomatic assurances to the court that they will place the requested person in a prison where conditions will comply with human rights standards. Such assurances are incredibly difficult to monitor after a requested person is extradited.

10. Extradition Order by the Secretary of State

If the judge is satisfied that all the procedural requirements are met, that none of the statutory bars to extradition apply and that extradition would not be incompatible with the requested person’s ECHR rights, he or she must send the case to the Secretary of State for a decision to be taken on whether to order extradition.

The Secretary of State does not reconsider the case, but is limited to checking whether any of three specific bars apply, namely:

  • risk of death penalty;
  • specialty bar;
  • the person has already been extradited to the UK from a third state or transferred from the International Criminal Court and consent for onward extradition is required from that third state or that Court (unless the Secretary of State has received consent)

A requested person has four weeks from the day their case is sent to the Secretary of State to make representations that any of these bars apply.

The Secretary of State must make a decision within 2 months of receiving the case from the court. However, an application can be made to the High Court for an extension of time. If the Secretary of State fails to make a decision within the required time limit (including any extension), the requested person can apply to be discharged.

If the Secretary of State finds that none of the specific bars apply, an order for extradition will be made. if surrender is prohibited, the person must be discharged.

11. Appeals

The right to appeal to the High Court: European Arrest Warrants

Following an order for extradition (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 State 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 State 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 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 State.

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.

Appeal procedure

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.

Respondent’s Notice

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. However, this can only happen on a point of law of general public importance.

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 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.

12. Extradition (Provisional Arrest) Act 2020

The Extradition (Provisional Arrest) Act 2020 has amended the Extradition Act 2003 to create a power of arrest without a warrant for the purpose of extraditing people for serious offences. Under the new law, where a request for a person’s arrest (which may take the form of inter alia an INTERPOL Red Notice) has been certified by the NCA, a constable or customs officer may arrest the person without the need to first apply for a warrant of arrest from a UK court. The NCA will only certify valid requests from specified category 2 territories which are listed in Schedule A1. A request is valid if it is made in the appropriate way and contains sufficient information in respect of both the identity of the person and the particulars of the offence for which he or she is sought.  There is no requirement for the Secretary of State to certify requests for specified category 2 territories

The requesting territory must have in place arrangements to ensure that a request may only be made where a warrant for the arrest of the person has been issued in that territory or the person is unlawfully at large following conviction. The request must be in respect of a “serious extradition offence” (an offence which is punishable with imprisonment or another form of detention for a term of 3 years or more under UK law, and 12 months or more under the law of the specified category 2 territory) and the conduct constituting the offence is sufficiently serious to justify certification. The territories currently specified in Schedule A1 are Australia, Canada, Liechtenstein, New Zealand, Switzerland and the USA and this list may be amended by the Secretary of State by regulations. EU member states, Norway and Iceland are specified in an as yet uncommenced paragraph of Schedule A1 – this provision cannot come into force in respect of a territory under that paragraph before that territory is a category 2 territory for the purposes of the Extradition Act 2003.

A person subject to provisional arrest must be brought as soon as practicable before the appropriate judge who must then decide, on the basis of any evidence or information produced, whether a warrant would be issued under section 73 of the Extradition Act 2003 (a provisional warrant for the arrest of a person prior to the commencement of formal extradition proceedings) if the person were not already under arrest. If the judge decides this hypothetical in the negative, the person must be discharged.

Jasvinder Nakhwal
Partner
jnakhwal@petersandpeters.com
Tel: +44 (0) 20 7822 7753

Nick Vamos
Partner
nvamos@petersandpeters.com
Tel: +44 (0) 20 7822 7776

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