Extradition

32.1 Introduction

Extradition is the legal process by which one state formally requests from another, usually on the basis of a treaty or equivalent legal arrangement, the surrender of a person accused or convicted² in the ‘requesting state’ of the commission of a criminal offence within its jurisdiction.³ It is a manifestation of the international obligation on states either to surrender a criminal for prosecution abroad or prosecute him or her before their own courts (aut dedere aut judicare).

The process in a state that receives an extradition request of deciding whether to surrender a requested person is not a ‘trial’ of the allegation in the requesting state, nor a review of any conviction imposed. The requested state is not evaluating evidence to assess innocence or guilt. Broadly speaking, the decision is based on an assessment of whether the formal requirements to accede to the extradition request are present and whether any of a number of prescribed ‘defences’ to extradition should bar surrender.⁴

32.2 Bases for extradition

The main mechanisms by which states enter extradition relationships are: (1) bilateral treaties, (2) multilateral treaties or conventions, and (3) ad hoc special arrangements.⁵

States have been engaged in formal extradition by way of bilateral treaty since at least 1284 BC.⁶ In more modern times, bilateral treaties have remained an important legal basis by which states form extradition relationships: for example, the current arrangements between the United States and the United Kingdom are established in the UK–US extradition treaty of 2003.⁷

In recent decades, however, multilateral treaties and conventions have become similarly important. The most prominent example is perhaps the European arrest warrant scheme, which came into force on 1 January 2004 in EU Member States by way of a European Framework Decision on Extradition.⁸ An EU-wide measure was considered desirable for a number of reasons, including to ensure that the initiative of open borders and free movement within the European Union did not also make evading justice easier. It was introduced to facilitate a speedier, simplified process of surrender between Member States that did not require requesting states to produce any evidence to support their requests for extradition (instead relying on the provision of ‘information’). At the heart of the simplified, expedited process was mutual trust and co-operation grounded on an assumption of broadly aligned systems and standards across Member States.

Other notable multilateral arrangements include the European Convention on Extradition 1957, which despite its title is the arrangement that governs (inter alia) the United Kingdom’s extradition relationship with South Africa, and is an instrument which Israel and the Republic of Korea have also ratified. Large multilateral arrangements have also been implemented elsewhere in the world, for example the Inter-American Convention on Extradition between 16 states in South America, Central America and the Caribbean.⁹ In the Middle East, the Riyadh Arab Agreement for Judicial Co-operation constitutes a similar multi­lateral arrangement.¹⁰

32.3 Core concepts

Whether the foundation for extradition is a bilateral or multilateral instrument, certain core concepts enable extradition, or operate to prevent it.

32.3.1 Double (dual) criminality

Under virtually all formal extradition arrangements an offence will not be ‘extraditable’ or an ‘extradition offence’ unless the conduct alleged constitutes, and would have done so at the relevant time, an offence under the laws of the requested state.¹¹ In other words, where a requested state concludes that the alleged conduct would not be criminal under its own domestic laws, it is not entitled to extradite.

The focus of this test is much more commonly considered to be the nature of the conduct alleged rather than a comparison of the juridical elements of the offences.¹² As long ago as 1878 the reason for this was recognised as follows: ‘[T]he . . . magistrate cannot be expected to know or interpret the foreign law. It is not desirable that he should be required to do more than to see that the facts proved constitute prima facie an offence which would have been within judicial cognizance if done in this country.’¹³

The ‘conduct test’ requires the transposition of the alleged conduct to the requested state to assess whether it would be criminal there. The depth at which this transposition of facts needs to occur is a matter of some debate, particularly in respect of certain types of crime. For example, fiscal offences, which are often highly state-specific are unlikely to satisfy a transposition exercise that ‘exports’ the specifics of the tax regime to the requested state. For this reason, tax offences often receive exemptions from the rigours of a double criminality transposition exercise.¹⁴ A further significant departure from the general requirement of double criminality is the use of lists of certain types or categories of criminal offending, which, if relied upon by the requesting state automatically bypass the need for a double criminality assessment in the requesting state.¹⁵

32.3.2 Specialty

A further, and near universally acknowledged, core principle of extradition is specialty.¹⁶ The principle demands that when a requested person has been extradited, they can only be prosecuted in relation to an offence for which the extradition was ordered. Prosecution or detention in connection with additional offences is usually only permitted where the extradited person is first afforded a period to leave the state to which he or she was surrendered, or where consent has been sought from (and provided by) the requested state.

32.3.3 ‘Political motivation’

Originally, the focus of the interplay between politics and extradition was the ‘political offence’ exception to extradition: in summary, the prohibition of extradition for offences committed for a political reason. The origins of this concept are in asylum and relate to the practice of providing refuge to those whose conduct was considered to be politically driven. As Lord Diplock famously observed, a degree of neutrality was needed in the approach to conflicts between regimes and their potential successors because ‘[t]oday’s Garibaldi may well form tomorrow’s government’.¹⁷ However, a widely acknowledged lack of clarity about the scope of what constituted a ‘political offence’, in particular in the context of the treatment of terrorists in the second half of the 20th century, led to a shift in how extradition arrangements sought to protect requested persons from persecution.

That shift has been to import the approach and concepts found in the 1951 Refugee Convention to create ‘non-discrimination’ protections in extradition, which prevent extradition where it can be shown that an extradition request has been issued to prosecute a requested person on account of their ‘race, religion, nationality, gender, sexual orientation or political opinions’¹⁸ or, where it can be established that a requested person might be prejudiced at trial or detained by reason of the same considerations.¹⁹ The scope of what constitutes ‘political opinions’ has been a source of some uncertainty, but the better view remains that the concept should receive a wide interpretation.²⁰

32.3.4 Double jeopardy (ne bis in idem)

Most extradition arrangements also recognise as a bar to surrender the ne bis in idem principle, which prevents a requested person from being surrendered where it would result in his or her prosecution twice for the same offence in different jurisdictions. The ability to rely on the double jeopardy bar does not necessarily require the offence or conduct that is the subject of the extradition proceedings to map identically onto the previous conviction or acquittal relied on. It should be available as a protection where the requesting state seeks to prosecute in respect of facts so closely related that it would be unfair for a second prosecution to take place.²¹

32.3.5 Human rights

Fundamental human rights concepts and standards have become increasingly relevant to extradition, particularly for Contracting States to the European Convention on Human Rights (ECHR). There are two central aspects to human rights protections in the extradition context: the court which applies these human rights standards must not act inconsistently with them, and further, extradition must be barred where surrender would be incompatible with rights conferred by the ECHR, even where the requesting state is not itself a Contracting State.

In practice, the ECHR articles most frequently relied on in extradition cases are Article 3 (the prohibition of torture and inhuman treatment), Article 6 (the right to a fair trial) and Article 8 (the right to a private and family life). Each of these commonly invoked provisions has a well-established body of case law at both national and supranational court level.

Article 3 ECHR is frequently deployed in connection with conditions of detention in the requesting state. The demonstration of serious systemic failings within a prison estate, or the existence of specific characteristics rendering an individual particularly vulnerable in detention can give rise to the necessary ‘substantial grounds’ for believing there is a ‘real risk’ of a breach of this protection. It is an increasingly common response of requesting states faced with such arguments to provide detailed, specific diplomatic assurances to the requested state to meet any potential Article 3 risk.

Article 6 ECHR as a bar to extradition most frequently arises in conjunction with the political motivation or extraneous consideration bar, where a requested person seeks to argue that the origins and purpose of the request for the extradition would expose him or her to an unfair trial process if surrendered. In doing so, the particular context of extradition requires not merely the demonstration of a risk of a violation of fair trial principles, but the real risk of a flagrant denial of justice.²²

Article 8 ECHR does not confer absolute rights. While extradition will inevitably infringe requested persons’ and their families’ rights, reliance on Article 8 to prevent extradition will depend on the court balancing competing interests and considering the proportionality of the interference caused by extradition, and its justification. In doing so, unsurprisingly courts consistently recognise the intrinsic and powerful interests in giving effect to extradition arrangements and in ensuring those charged with crimes face trial. Added to that, courts will frequently weigh factors such as the seriousness and age of alleged conduct on the one hand, and the impact of extradition on children and vulnerable dependents on the other. Overall, it is only in comparatively rare cases that the Article 8 rights of a requested person outweigh the interests in surrender.

32.4 Trends in extradition

32.4.1 Growth of international co-operation in criminal justice

Population growth and global migration has provided the major impetus for the increased use of extradition in the past twenty years. A key criminal justice response to the free movement of peoples introduced following the entry into force of the Treaty of Maastricht²³ was the Framework Decision which provided for the mutual recognition of warrants of arrest issued by judicial authorities across the European Union.²⁴ Non-EU states have dusted off rarely used extradition treaties that have been in existence since the late nineteenth century, and a profusion of new extradition treaties that permit extradition between states that formerly had no extradition arrangements at all have been created. In 2020, Kuwait and Morocco were designated under Part 2 of the Extradition Act 2003 and added to the ever-lengthening list of states that the United Kingdom now regards as ‘extradition partners’.²⁵

The importance of the text of the international convention creating the extradition relationship depends on whether the state directly implements treaty provisions into its domestic law (monist states) or whether local law is required to give effect to treaty obligations (dualist states). In the United Kingdom, and generally across all common law jurisdictions, domestic implementing legislation is required, and the text of the treaty is of secondary importance. In many civil law jurisdictions, the provisions of the treaty or other international arrangement such as the Framework Decision have direct effect in local law.

One of the more controversial features of the European arrest warrant scheme introduced by the Framework Decision was that all Member States agreed that the Court of Justice of the European Union (CJEU) would have the final say in interpreting relevant provisions of the Framework Decision, and that its findings would bind local courts in Member States. For many in the Brexit campaign who opposed the EAW, this feature of the Framework Decision represented a surrender of UK sovereignty to the CJEU.

32.4.2 The ‘judicialisation’ of the extradition process

The increased importance of judicial as opposed to political decision-making in extradition cases is part of a growing trend across all extradition arrangements, both within and outside the European Union, between EU and non-EU states, and states wholly outside the European Union. In the past, extradition treaties were often based on simple lists of offences for which extradition would be ordered. The requesting state would have to provide evidence in support of the request, which was only received and admitted by the executing court if it satisfied a complex and arcane set of rules. Extradition was often only barred for political or military offences or by reason of the passage of time, and human rights challenges were unheard of. Although courts were involved in assessing evidence and applying the relevant provisions of the applicable treaty or domestic law, the decision as to whether to proceed with the extradition request in the first instance, and ultimately whether to order extradition at the conclusion of the hearing was almost always taken by the executive.

In many states, the decision to extradite still remains a decision taken by the executive, but the courts of the executing state have a much greater role than historically has been the case. In EU states and the United Kingdom, the decision to extradite is now almost always made by a court rather than the executive. As the ECHR and the jurisprudence of the European Court of Human Rights has become more embedded in the domestic legal orders of EU states, responsibility for making what were regarded as political decisions of a legal character was removed from the executive, and became the exclusive preserve of the courts.

Decisions as to whether to extradite a requested person are now made upon the basis of an established and well-defined set of rules, in an open and public forum, by tribunals whose decisions can be challenged in superior courts. In this way, not only have the numbers of extradition cases increased exponentially in recent years, but also their visibility and accessibility. Where the executive does retain a role in the process, as in the United Kingdom, where the Secretary of State for the Home Department makes the decision to order a person’s extradition where the request is received from a state outside the European Union, that decision is ordinarily heavily circumscribed. There is little or no room for the government to take a different decision from the courts, and when it has done so, further reductions in the scope of executive decision-making has followed.²⁶

Courts are also required to make a far greater number of individual decisions in extradition cases. As above, most states now use the ‘conduct test’ rather than a simple list-based system to determine whether an extradition crime is made out. This means that a far greater number of offences are potential extradition crimes and the court is required to examine the underlying conduct alleged in each request. Many states have human rights and other bars based on anti-discrimination clauses in their local laws requiring careful judicial consideration. In complex frauds that may have a political dimension, the executing court is often required to examine a large volume of documentary material and consider the reports of expert witnesses in deciding whether there is prima facie evidence of an extradition crime and whether the requested person is able to make good a challenge to the request on human rights or other grounds.

Once executive authority to proceed with a request had been given, traditionally the extradition court in the executing state would have considered whether the requesting state had adduced sufficient evidence in receivable and admissible form to demonstrate that the requested person had a case to answer. Many modern extradition arrangements have not only done away with the requirement for documents to be bound and sealed, but have also dispensed with the requirement to prove a prima facie case on the request.

32.4.3 Decreasing requirement to provide evidence of a prima facie case

The clearest example of this development is the European arrest warrant, which requires either a box to be ticked indicating a Framework List offence is the subject of the request, together with a short description, usually no more than a paragraph, of the conduct alleged against the requested person. In the United Kingdom, there are other ‘trusted extradition partners’ such as the ‘Five Eyes’ states and other Member States of the Council of Europe who likewise, are not required to provide evidence of a prima facie case in the extradition request.²⁷ All that is required is an affidavit, usually from a state prosecutor, setting out information on which a judge at the extradition hearing can determine whether an extradition crime is made out. Such affidavits often do no more than recite the conduct imputed to the requested person in the domestic indictment or the factual basis of that person’s criminal conviction together with the key procedural milestones in the domestic criminal case, the current whereabouts of the person sought, some personal information about them and details of the relevant local law, charges, indictment or conviction.

32.4.4 Expedition in the process

Whether or not the courts in the executing state require the requesting state to provide evidence of a prima facie case, most modern extradition arrangements are designed to promote expedition. Swift decision-making is not only a foundational objective of the Framework Decision but is given effect by the simplified procedure of mutual recognition of judicial decisions. Time limits imposed by domestic law also attach to the various procedural stages of an extradition hearing. In the United Kingdom, these time limits are found in the Extradition Act 2003, the Criminal Procedure Rules and several relevant practice directions.²⁸ The most prominent example of this was the strictly enforced time frame for serving and filing notices of appeal from the decision of the judge at the extradition hearing. Until recently there were no circumstances in which time could be extended to permit late service of an application for permission to appeal, which is seven days in the case of Part 1 Extradition Act 2003 cases and 14 days for all other requests.²⁹ However, the obvious potential for injustice caused by such inflexible adherence to the principle of expedition was tempered by enabling an extension of time where a requested person ‘did everything reasonably possible to ensure that the notice was given as soon as it could be given’.³⁰

Notwithstanding the increased role of the courts, the multiplicity of issues that are raised in extradition hearings and the opportunities for review and appeal, extradition requests from states that are outside the European Union are also moving through the courts increasingly swiftly. In part, this is because as the number of cases increases, issues are litigated with greater frequency, which results in greater clarity in decision-making and fewer legal and procedural uncertainties. As specialised courts, judges and legal professionals acquire an intimate knowledge of this niche practice area, greater efficiencies are introduced into the process and more cases are dealt with year on year.

32.5 Contemporary issues in extradition

32.5.1 US extraditions and the forum provisions in UK law

A major issue that has been the cause of tension and controversy in recent years, particularly in the United Kingdom, is the extraterritorial reach of United States’ law enforcement and its impact on the nature and frequency of extradition requests received. It has proved marginally less controversial in many other European states that tend not to extradite their own nationals. France, Belgium, and Germany are obvious examples of states that will not extradite their citizens to the United States, regardless of the seriousness of the offences disclosed by the request. This constitutional protection against extradition arises from how such states exercise criminal jurisdiction, which is in accordance with the nationality principle. Hence a crime committed abroad by a French citizen is triable in a French court, wherever in the world the conduct occurred. In common law states, criminal jurisdiction is usually exercised in accordance with the territorial principle. In the United Kingdom, crimes committed abroad are generally not justiciable in domestic courts, which have jurisdiction to try crimes committed within UK territory. A UK citizen who commits a crime abroad can only be tried in the courts located in the territory of the state where the conduct occurred, unless the crime was of a certain character.³¹

The United States has traditionally exercised its jurisdiction territorially, but in recent years has increased the number of offences over which it claims extraterritorial jurisdiction. As a general rule of thumb, any offence which is committed outside the territory of the United States that uses the banking system in the United States or which is regarded as targeting US interests or citizens is potentially justiciable in a US criminal court. The evolution of the extraterritorial reach of US law enforcement is not purely legal in origin. Allied to the expansion of a jurisdiction that was traditionally exercised territorially is an appetite among US prosecutors, particularly in the Southern District of New York and the Departments of Justice and Homeland Security, to pursue such cases together with the resources to carry them to a conclusion.

An immediate consequence of what is termed in some quarters as the exercise of ‘exorbitant jurisdiction’ is the high number of extradition requests received from the United States. In response to a freedom of information request made in January 2020, the Home Office in the United Kingdom provided figures confirming that it extradites over twice as many people to the United States as the United States extradites to the United Kingdom. Between 1 January 2014 and 31 December 2019, the United States extradited 15 people to the United Kingdom and, in the same period, the United Kingdom extradited 36 people the other way. In 2019 the number extradited from the United Kingdom to the United States (12) was four times the number the United States sent to the United Kingdom. Between 2014 and 2020, both countries were more likely to extradite a UK national than a US national; the United Kingdom extradited 11 of its nationals (30 per cent) and eight US nationals (22 per cent) to the United States, while the United States extradited five UK nationals (33 per cent) and four of its nationals (26 per cent).³²

A number of high-profile cases in which the United States has sought the extradition of UK nationals whose conduct was mainly or exclusively committed in the United Kingdom have proved particularly controversial in recent years and has led to a change in the UK law by the introduction of the ‘forum test’ in the revised section 83A of the Extradition Act 2003.³³

The underlying aim of the forum provisions is to prevent extradition where the offences can be fairly and effectively tried in the United Kingdom, and it is not in the interests of justice that the requested person should be extradited. The matters relevant to an evaluation of ‘the interests of justice’ for these purposes are found in section 83A(2)(b). The forum provisions do not leave to the court the task of some vague or broader evaluation of what is just. Nor is the bar a general provision requiring the court to form a view directly on which is the more suitable forum to try a particular case.³⁴

Although it is in US extraditions that forum challenges tend to attract public attention (and at the time of writing there are a number of high-profile US cases focusing on the forum bar pending consideration by the High Court), forum-based challenges are now available to requested persons in all extradition requests executed by a UK court, wherever they originate. To date the forum provisions have not led to a significant reduction of extraditions of UK citizens to the United States, but have undoubtedly caused extradition practitioners to consider raising challenges to the exercise of extraterritorial jurisdiction by all states, not just the United States.

32.5.2 Extradition and Interpol red notices

Interpol is an organisation that collects and disseminates information to the global law enforcement community. Where it receives that information from and what is done with it has come under increasing scrutiny in recent years, from outside the organisation, and within it.³⁵ The use of red notices is of ever increasing relevance to extradition practitioners, as their use (and abuse) is often closely linked to the making of a formal request for extradition.

In general, an Interpol national control bureau (NCB) in the territory of the requesting state will receive notification from a local police department, prosecutor or court that a person is wanted and domestic searches have not located the individual concerned. If a decision has been made to prosecute that person, the NCB will usually request that Interpol HQ in Lyon, France, issue a red notice requesting that the person be located, arrested and detained pending receipt of an extradition request. The red notice is generally circulated among NCBs in all Interpol Member States.³⁶ It is acted on in different ways, depending on the constitutional arrangements of the state in which the person sought is located.

Broadly speaking, dualist states tend not to arrest and detain on red notices, whereas monist states do. Most civil law jurisdictions will arrest and detain on a red notice pending receipt of a formal request for extradition for a prescribed period, often around 40 days. Common law states traditionally did not arrest and detain on red notices, instead requiring receipt of a formal request for extradition before a domestic arrest warrant is issued by a court.

That position will change when the Extradition (Provisional Arrest) Act 2020 comes into force.³⁷ This legislation is designed to permit the rapid arrest of persons sought by law enforcement in so-called ‘trusted states’ in Category 2 territories without having to wait for the arrival of a formal request for extradition so as to fill what has been described as a ‘capability gap’, where those accused or convicted of serious crimes in non-EU states cannot be arrested immediately when found in the United Kingdom. Where such trusted states request Interpol to circulate a red notice for a requested person, the Act will give UK police the power to arrest and detain on such notices provided that a certificate has been issued by the National Crime Agency (NCA).

Among other things, the NCA must certify that the red notice or ‘request for the person’s arrest’ is ‘valid’ and is for a ‘serious extradition offence’ and that issue of the certificate would be ‘appropriate’ to the seriousness of the conduct constituting the offence. A request is valid if it is made in the ‘approved way’ and contains a statement that the requested person is sought for the purpose of prosecution or to serve a sentence of imprisonment. In accusation cases, the NCA must also certify that there is sufficient information about the identity of the offender, the conduct alleged against him or her, the relevant provision in local law said to constitute the offence and the available sentence. In conviction cases, the request must contain particulars of the person’s identity, their conviction, and the sentence that may be or has been imposed. A request is made in the approved way if it received by an authority in the Category 2 territory that the NCA ‘believes’ has the function of making such requests.

The list of ‘trusted states’ in Schedule A1 to the Act currently includes the other ‘Five Eyes’ states (the United States, Canada, Australia, New Zealand) plus Liechtenstein and Switzerland.

32.5.3 Extradition and Brexit

For all its critics, the EAW scheme is broadly recognised as providing law enforcement with a swift, proportionate and effective means of securing extradition between EU Member States while providing requested persons with procedural and substantive human rights protections. On 1 January 2021, the Brexit transition period came to an end and the United Kingdom is no longer subject to the jurisdiction of the CJEU. Accordingly, the United Kingdom is no longer entitled to be a party to the Framework Decision and has come out of the EAW scheme.

In its place, on 24 December 2020, the United Kingdom and the European Union agreed the terms of 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 (the TCA). The TCA included, at Title VII of Part 3, provisions relating to the surrender of citizens between the United Kingdom and the European Union.

The surrender arrangements contained in the TCA are very similar to those provided for by the Framework Decision and those in place between Norway and Iceland and the European Union. As a result, the United Kingdom’s future extradition relationship with EU member states will largely operate as previously. There are, however, a small number of provisions that represent a departure from the EAW scheme.

The TCA provides that the new arrangements are subject to the principle of proportionality, and must take into account:

the rights of the requested person and the interests of the victims, and having regard to the seriousness of the act, the likely penalty that would be imposed and the possibility of a State taking measures less coercive than the surrender of the requested person particularly with a view to avoiding unnecessarily long periods of pre-trial detention.³⁸

While proportionality was an existing principle under the United Kingdom’s domestic legislation, it was not provided for in the EAW Framework Decision.

As noted above, the role of the CJEU, as the court of last instance in all EAW cases, has been removed. The CJEU has been replaced by the Specialised Committee on Law Enforcement and Judicial Cooperation, which appears to have a mixture of judicial and administrative functions.

Another notable provision in the TCA is that the United Kingdom or EU Member States are permitted to refuse to execute an arrest warrant on the grounds of nationality. States can elect to refuse the extradite their own citizens.³⁹ Any State wishing to make use of this provision must notify the Specialised Committee. At the time of writing, 10 EU Member States have notified the Committee of their intention to exercise an absolute bar on the extradition of their own nationals to the United Kingdom.⁴⁰ A number of other states have attached conditions to the surrender of their own nationals, including a requirement that the requested person’s consent is required first. Overall, only a minority of states have not sought to impose some limitation on their own nationals’ liability to extradition. It remains to be seen how significant this new stance on surrender will prove, and whether it gives rise to an imbalance in the arrangements between the United Kingdom and the European Union.

While the negotiation of the TCA was under way, all 27 EU member states were pre-emptively added to Schedule A1 of the Extradition (Provisional Arrest) Act 2020, to permit arrest on a request received from a judicial authority in an EU member state without a UK arrest warrant.⁴¹ This action appears to have been taken in anticipation of a ‘no deal’ Brexit but, in the event, proved unnecessary.

The TCA, which was provisionally approved by the European Union in December 2020 and applied since 1 January 2021 was formally ratified by the European Parliament in April 2021.

In January 2021, judgment was handed down by the High Court in Polakowski and others.⁴² The Court considered whether there was a lawful basis for the surrender of persons arrested pursuant to EAWs during the transition period (i.e. after the United Kingdom’s exit, but prior to the introduction of the TCA). The applicants argued that there was not and that, accordingly, there was no proper basis for their detention (in some cases) or bail conditions (in others). The Court found that the challenge was not arguable and therefore refused permission to appeal for judicial review in each case.

In reaching its finding, the High Court considered a bewildering array of agreements, statutory instruments and Acts of Parliament. The court concluded that Articles 7, 62(1)(b) and 185 of the Withdrawal Agreement provided that the Framework Decision continued to apply to those cases where arrest on an EAW had taken place before 11 pm on 31 December 2020, and that those provisions of the Withdrawal Agreement were given effect in domestic law by sections 7A to 7C of the European Union (Withdrawal) Act 2018, which confirms that in such cases the ‘unmodified’ Extradition Act 2003 continues to apply. Additionally, the court confirmed that the CJEU retains jurisdiction over such cases pursuant to Article 86 of the Withdrawal Agreement.

Footnotes

¹ Ben Brandon is a barrister and a partner at Mishcon de Reya LLP and Aaron Watkins is a barrister at Cloth Fair Chambers.

² Extradition may not be used for the purposes of investigation, conducting interviews or generally gathering evidence; there are well established methods of mutual legal assistance for these activities.

³ Although similarly concerned with ‘expulsion’ and therefore not infrequently confused with deportation, extradition is an entirely distinct legal concept. Whereas deportation generally concerns the removal of individuals to foreign states in which they have residency rights from a country where they do not, and is often entirely unconnected to criminality, extradition depends on a request for the return of an individual for alleged criminal conduct.

⁴ Under some extradition schemes, a court may (where it is required by the relevant extradition law) consider whether the requesting state has provided sufficient evidence of a ‘case to answer’, also referred to as a prima facie case. Generally, this is a decreasingly common requirement in extradition proceedings, as the growing trend is to assess the sufficiency of ‘information’, rather than to require ‘evidence’ of a case to answer.

⁵ Not considered further in this chapter, these are usually diplomatically negotiated one-off measures in relation to particular cases of interest to the requesting state.

⁶ A treaty between Egyptian Pharaoh Rameses II and Hittite ruler Hattusilis III.

⁷ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/243246/7146.pdf.

⁸ https://eur-lex.europa.eu/resource.html?uri=cellar:3b151647-772d-48b0-ad8c-0e4c78804c2e.0004.02/DOC_1&format=PDF.

⁹ In force in March 1992.

¹⁰ Part VI. In force in October 1985. The following governments are signatories to this agreement: Jordan, United Arab Emirates, Bahrain, Tunisia, Algeria, Djibouti, Saudi Arabia, Sudan, Syria, Somalia, Iraq, Oman, Palestine, Qatar, Kuwait, Lebanon, Libya, Morocco, Mauritania and Yemen.

¹¹ Other requirements are sometimes added to strengthen this requirement, for example requiring the conduct to be capable of punishment in excess of a specified minimum to ensure a baseline of seriousness.

¹² See, for example: Norris v. Government of the United States [2008] 1 A.C. 920.

¹³ Report of the Royal Commission on Extradition (1878).

¹⁴ See, for example, Second Additional Protocol to the European Convention on Extradition 1957, Chapter II, Article 2, and Council Framework Decision 2002/584/JHA on the European arrest warrant, Article 4(1).

¹⁵ See, for example, Council Framework Decision 2002/584/JHA on the European arrest warrant, Article 2(2).

¹⁶ Sometimes referred to as ‘speciality’ to achieve linguistic equivalence with the French word ‘spécialité’ and German ‘spezialität’.

¹⁷ Cheng v. Governor of Pentonville Prison [1973] AC 931.

¹⁸ Also referred to as the ‘extraneous considerations’ bar to extradition.

¹⁹ See, for example, UK Extradition Act 2003, ss.13 and 81.

²⁰ Emilia Gomez v. SSHD [2000] INLR 549: It is not necessary to demonstrate the only motive behind a request or prosecution is political, it is sufficient for political reasons to part of the motivation. It is not necessary to show political action or activity. Political opinions can be those imputed to the requested person. It is also unhelpful to create rigid distinctions between narrowly political opinions and other opinions of political relevance, such as economic opinions.

²¹ See, for example, Fofana v. Deputy Prosecutor Thubin Tribunal de Grande Instance de Meaux France [2006] EWHC 744 (Admin).

²² Othman v. United Kingdom [2012] ECHR 56 at paras. 258–60.

²³ https://europa.eu/european-union/sites/europaeu/files/docs/body/treaty_on_european_union_en.pdf.

²⁴ Council Framework Decision 2002/584/JHA of 13 June 2002.

²⁵ The Extradition Act 2003 (Amendments to Designations) Order 2020. Statutory Instrument No. 265 of 2020.

²⁶ The Crime and Courts Act 2013 was enacted following then-Secretary of State Theresa May’s decision to block the extradition of computer hacker Gary McKinnon to the United States. The Act introduced the ‘forum bar’, at Extradition Act, section 83A, which provides that the extradition of a person is barred by reason of forum if the extradition would not be in the interests of justice.

²⁷ ‘Five Eyes’ is an alliance between the intelligence agencies in Australia, Canada, New Zealand, the United Kingdom and the United States. Council of Europe states that are not within the European Union are Albania, Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Iceland, Liechtenstein, Monaco, Montenegro, North Macedonia, Norway, Republic of Moldova, Russian Federation, San Marino, Serbia, Switzerland, Turkey and Ukraine.

²⁸ Criminal Procedure Rules 2015 (the Criminal Procedure Rules 2020 come into force on 5 October 2020) and Practice Directions.

²⁹ Extradition Act 2003, ss.26(4), 28(5), 105(5) and 108(4)

³⁰ ibid., ss.26(5), 103(10), 108(7A)

³¹ There are exceptions to this general rule, and the United Kingdom has extraterritorial jurisdiction over certain offences, including murder and manslaughter in most circumstances, certain sexual offences against minors, terrorist offences, bribery offences and other crimes attracting species of universal jurisdiction, such as genocide and certain war crimes, and crimes against ships and aircraft, including piracy. In June 2012, the United Kingdom signed the Istanbul Convention which, once ratified, will allow the United Kingdom to prosecute certain other types of criminal conduct committed outside of the United Kingdom, including sexual offences where the victim is aged over 18.

³² Letter from the Home Office to Ben Brandon, Mishcon de Reya LLP, dated 6 April 2020. FOI Reference: 57368.

³³ The ‘forum bar’ in the Extradition Act 2003, s.83A, was inserted by the Crime and Courts Act 2013, s.50 and Schedule 20, para. 6.

³⁴ Love v. United States [2018] EWHC 172 (Admin) and Scott v. United States [2018] EWHC 2021 (Admin)

³⁵ The TRAP Act, introduced by US Congress in 2019, recommended that the United States should use its influence at Interpol to enhance the screening of requests for notices, to prevent abuse and to encourage penalisation or suspension of countries from Interpol that persist in making improper or politically tainted requests for deletion and extradition. In an attempt to increase transparency, the Commission for the Control of Interpol’s Files has, in recent years, published a number of redacted decisions on compatibility with the Interpol Constitution and Rules.

³⁶ Interpol has 194 Member States. Currently the only recognised country that is not a member is North Korea.

³⁷ https://www.legislation.gov.uk/ukpga/2020/18/enacted/data.pdf.

³⁸ Article LAW.SURR.77, TCA.

³⁹ Article LAW.SURR.83, TCA.

⁴⁰ Letter to Lord Ricketts, Chair of the EU Security and Justice Sub-Committee, House of Lords, from Kevin Foster MP, Minister for Future Borders and Immigration, 5 March 2021. The EU Member States concerned are Croatia, Finland, France, Germany, Greece, Latvia, Poland, Slovakia, Slovenia and Sweden.

⁴¹ https://www.legislation.gov.uk/ukpga/2020/18/enacted/data.pdf.

⁴² [2021] EWHC Civ 53 (Admin).