Global Investigations Review - The law and practice of international investigations

Extradition

Last verified on Friday 2nd August 2019

England & Wales

Anand Doobay
Boutique Law LLP
  1. 1.

    Are extradition proceedings regulated by domestic legislation, treaties or both?

  2. Extradition proceedings in the United Kingdom are governed by the Extradition Act 2003 and all references herein are to the Extradition Act 2003 (www.legislation.gov.uk/ukpga/2003/41/contents).

  3. 2.

    Is there a central register of extradition treaties that your state has entered into?

  4. The Foreign and Commonwealth Office provides an online register of treaties that can be searched to locate extradition treaties (https://treaties.fco.gov.uk/responsive/app/consolidatedSearch/).

    Any country that has extradition arrangements with the United Kingdom will be designated as a Category 1 or Category 2 territory. 

    • EU Member States and Gibraltar are designated as Category 1 territories and are dealt with under Part 1 of the Extradition Act 2003. 
    • Category 2 territories are dealt with under Part 2 of the Extradition Act 2003. 

    A list of Category 2 territories can be found at (https://www.gov.uk/guidance/extradition-processes-and-review#extradition-from-the-uk-category-2-territories).

  5. 3.

    Do special extradition arrangements apply to certain foreign states, for example states that are geographically proximate, or politically, legally or economically closely linked?

  6. The Extradition Act 2003 deals with extradition arrangements with all countries. Part 1 provides for a different procedure for EU Member States and Gibraltar and reflects the European Arrest Warrant Framework Decision.

  7. 4.

    Is extradition possible to states that have no bilateral or multilateral extradition treaty with your state if they are party to an international convention?

  8. Section 193 designates some countries that are parties to international conventions with the United Kingdom. These designated countries will be able to make extradition requests for conduct covered by the specified conventions. 

    The Extradition Act 2003 (Parties to International Conventions) Order 2005 SI 2005 No. 46 sets out the countries that have been designated and the conventions that apply for each country (http://www.legislation.gov.uk/uksi/2005/46/contents/made).

  9. 5.

    Is extradition possible to states that are not extradition treaty partners as an ad hoc arrangement?

  10. Section 194 allows an ad hoc arrangement to be made for a specific extradition request from a country that does not have an extradition treaty with the United Kingdom.

  11. 6.

    For which offences is extradition from your state allowed?

  12. The conduct described in the extradition request must qualify as an extradition offence. The definition for an extradition offence is set out in sections 64 and 65 for Part 1 cases and sections 137 and 138 for Part 2 cases. There are separate but similar definitions for accusation and conviction cases. There are a number of categories of extradition offence and conduct described in an extradition request may satisfy more than one category.

  13. 7.

    Is there a requirement for double (dual) criminality? How is this assessed?

  14. Double criminality is not required for European arrest warrants that deal with offences in the 32 categories of offences set out in the European Arrest Warrant Framework Decision (sections 64(5) and 65(5)). However, for an accusation request, the conduct must be punishable under the law of the requesting territory with at least three years’ imprisonment and in the case of a conviction, a sentence of at least four months’ imprisonment must have been imposed. None of the conduct can have taken place in the United Kingdom.

    In all other cases, double criminality is required and the court will need to decide whether the conduct described in the extradition request would have constituted an offence if it had taken place in the United Kingdom.

  15. 8.

    How would your state deal with a request that includes an offence for which extraterritorial jurisdiction is claimed?

  16. There are additional definitions of extradition offence that cover extraterritorial offences:

    • sections 64 (for accusation cases) and 65 (for conviction cases) for Part 1 cases; and
    • sections 137 (for accusation cases) and 138 (for conviction cases) for Part 2 cases.
  17. 9.

    What must be included as part of a valid extradition request made by the foreign state?

  18. For Part 1 cases, all that is required is the completed European arrest warrant but the information within it must comply with the requirements in section 2. The National Crime Agency will issue a certificate if these requirements are satisfied.

    For Part 2 cases, the Secretary of State (the Home Secretary) will consider whether the extradition request complies with the requirements set out in section 70. If it does, a certificate will be issued and provided to the court with the request. The court will then need to be satisfied that the extradition request includes the information set out in section 78 and the request must include an arrest warrant for an accusation case, or a certificate of conviction and sentence (if sentencing has already taken place) for a conviction case. The judge must also consider whether there is sufficient evidence to make a case requiring an answer if the requested person was appearing at a summary trial, and will consider evidence called on behalf of the requested person. Some countries have been designated under Article 4 of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 – these are not required to provide evidence. They include countries that are a party to the Council of Europe Convention on Extradition 1957 and the United States, Canada, Australia, New Zealand and Hong Kong. A list of the designated countries (referred to as Type B countries) is available on the UK government website (https://www.gov.uk/guidance/extradition-processes-and-review).

    The extradition request will need to be provided in English or with an English translation. Section 202 provides for the admission of documents in either authenticated or unauthenticated form and so translations do not need to be legalised. Section 84, paragraphs (2) to (4) deal with the admissibility of evidence if the country is required to provide evidence. 

  19. 10.

    What are the stages of the extradition process?

  20. For Part 1 cases, the European arrest warrant is received by the National Crime Agency, which decides whether to issue a certificate. The court process starts after arrest and the arrested person should be produced at court as soon as possible. At an initial hearing, the court will consider whether the procedural requirements in section 4 have been met and will decide the identity of the person on the balance of probabilities. The court will ask the person if he or she wants to consent to extradition (see question 22) and will consider whether to release the person on bail (see questions 16 to 18). 

    For Part 2 cases, there is an initial stage when the Secretary of State considers the request and decides whether to issue a certificate (see question 11). The court then decides whether to issue an arrest warrant (see question 14) and the person should be produced at court as soon as possible after arrest. The court will consider at the first hearing whether the procedural requirements in section 72 have been met. The court will also ask the person if he or she wants to consent to extradition (see question 22) and will consider whether to release the person on bail (see questions 16 to 18).

    Part 1 and Part 2 extradition hearings involve similar steps and the issues to be considered include:

    • any challenge to the validity of the European arrest warrant or extradition request (see question 9) – the issue of identity is also dealt with for Part 2 requests;
    • whether the conduct amounts to an extradition offence (see questions 6 to 8) and, if it does, whether any bars arise (see question 19);
    • whether extradition is compatible with the person’s rights under the European Convention on Human Rights (ECHR) and, for Part 1 accusation cases, whether it is proportionate (see question 21);
    • whether the requested person is entitled to an adjournment or discharge on the basis that extradition would be unjust or oppressive owing to the person’s physical or mental condition (see question 19);
    • whether, in a Part 2 accusation case, the evidence is sufficient to require an answer by the person (a prima facie case: see question 9), unless the requesting territory has been designated (see question 9);
    • in a conviction case, whether the person was present when convicted and, if not, whether he or she was deliberately absent – a person who was not deliberately absentis entitled to a retrial.

    If any of these requirements is not met or if a bar is made out then the person will be discharged. Otherwise, at the conclusion of the extradition hearing, extradition is ordered for a Part 1 case (section 21(3)) or a Part 2 case is sent to the Secretary of State for a decision (see question 24). 

  21. 11.

    If an initial political decision is required, what factors can be considered?

  22. For Part 2 cases (see question 2), the Secretary of State must issue a certificate if the request complies with the requirements in section 70. If there are competing requests for extradition or the requested person is a refugee, or has been granted leave to enter or remain because removal to the requesting territory would be a breach of Article 2 or 3 of the ECHR, then the Secretary of State may refuse to issue a certificate (section 70(2)). Once the Secretary of State has issued a certificate, the extradition request and the certificate must be sent to the court (see question 14).

  23. 12.

    Is provisional arrest, before the extradition request is received, possible?

  24. For Part 1 cases, section 5 deals with provisional arrest when a European arrest warrant has not yet been issued or certified, but it is rarely used in practice. The arrested person must appear before the court within 48 hours of arrest (section 6(2)). A certified Part 1 warrant must be produced at the hearing unless an extension of a further 48 hours is granted.

    For Part 2 cases, section 73 allows the court to issue a provisional arrest warrant. After the person is arrested, there is a specified period within which the extradition request must be received (section 74). For most Category 2 countries, this is 45 days but some have a longer period (Article 4, Extradition Act 2003 (Designation of Part 2 Territories) Order 2003).

  25. 13.

    Must a domestic arrest warrant be issued or can an Interpol red notice be used to carry out a provisional arrest?

  26. A domestic arrest warrant has to be issued (see questions 12 and 14). An Interpol red notice may be used to apply for a domestic provisional arrest warrant (see question 12) but this is not common.

  27. 14.

    What is required to apply for a domestic extradition arrest warrant?

  28. For Part 1, there is no need to have a domestic arrest warrant. Instead the European arrest warrant and a certificate issued by the National Crime Agency are sufficient to allow an arrest to take place. 

    For Part 2, the judge must receive the extradition request and a certificate from the Secretary of State. The judge also has to be satisfied that the request relates to an extradition offence (see questions 6 to 8) and that there is evidence that would justify the issue of warrant in the United Kingdom (section 71). However, little evidence is required for the issue of a warrant in the United Kingdom and some countries have been designated so that they do not have to provide any evidence (see question 9 for a list of these countries). For any of these designated countries, the judge just has to be sure that it has provided sufficient information rather than evidence. 

  29. 15.

    What rights does the requested person have while under arrest?

  30. Codes of Practice have been issued under section 173, which set out the rights of the arrested person (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/117675/extradition-codes-of-practice.pdf).

    Code C deals with the rights a person has while in police custody, which include the right to:

    • have someone informed about the arrest;
    • be told that free independent legal advice is available; and 
    • consult privately with a lawyer.
  31. 16.

    Is bail available in extradition proceedings?

  32. At the end of the first hearing, the requested person must be remanded on bail or in custody. There is a presumption in favour of bail for an accused person but not for a convicted person (section 198(5)). A person who is denied bail, or granted bail subject to conditions, can appeal to the High Court to apply for bail or seek to vary the conditions. The country requesting extradition can appeal a decision to grant bail to the High Court.

  33. 17.

    If so, what are the factors that a court will take into account in deciding whether to grant bail?

  34. The most common reasons used by the court to refuse bail are 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. 

    Therefore, it will be important to demonstrate the arrested person’s ties to the United Kingdom and to state why the person will want to take part in the extradition proceedings rather than fleeing. 

  35. 18.

    Can the court impose conditions when granting bail? What conditions can be, and usually are, imposed?

  36. The court can impose conditions and will always impose some conditions. Common conditions include:

    • surrender of travel documents (eg, passport) with a prohibition on applying for further travel documents;
    • to live and sleep each night at a specified address;
    • a curfew that can be monitored electronically with a tag;
    • periodic reporting to a local police station;
    • to have a mobile phone always charged and switched on;
    • not to visit airports or sea ports;
    • to provide a security that is a sum of money deposited with the court; and
    • to provide a surety who is a person with a relationship with the requested person who puts at risk some of their own assets to guarantee the person will attend court. 
  37. 19.

      What bars can be raised to resist extradition?

  38. The judge is required to decide whether there are any bars to extradition (Part 1, section 11; Part 2, section 79). 

    No prosecution decision

    For Part 1 cases, the judge will decide whether there are reasonable grounds to believe that the competent authorities in the requesting territory have made decisions to charge and try the requested person (section 12A). If those decisions have not been made and this is not solely because of the requested person’s absence, extradition will be barred unless the requesting territory can prove, to the criminal standard, that the decisions have been made or that any failure is solely caused by the requested person’s absence.

    Double jeopardy

    Double jeopardy will bar extradition if any rule of UK law, including the abuse of process jurisdiction, would result in the requested person’s discharge (Part 1, section 12; Part 2, section 80).

    Extraneous considerations

    Extraneous considerations will bar extradition if:

    • the request is issued for the purpose of prosecuting or punishing the requested person on account of their race, religion, nationality, gender, sexual orientation or political opinions (to be proved on the balance of probabilities); or
    • there is a ‘reasonable chance’ that, if extradited, the person might be prejudiced at trial or punished, detained or restricted in his or her personal liberty for one of the same reasons.

    (Part 1, section 13; Part 2, section 81)

    Passage of time

    The passage of time will bar extradition if it would make the person’s extradition unjust or oppressive (Part 1, section 14; Part 2, section 82). Injustice refers to potential unfairness at a trial after extradition. Oppression relates to changes in a person’s circumstances and it requires more than hardship, which is a common result of extradition.

    Age

    For Part 1 cases, age can also be a bar if the person has not attained the age required in the United Kingdom for the conduct complained of to be a criminal offence (for example, the person was under the age of 10 at the time (section 15)).

    Speciality

    See question 23.

    Forum

    Extradition will be barred in accusation cases if a substantial measure of the alleged criminal conduct occurred in the United Kingdom and if the judge decides that extradition would not be in the interests of justice (Part 1, section 19B; Part 2, section 83B). The judge cannot consider this bar if he or she receives a UK prosecutor’s certificate confirming that the person will not be prosecuted in the United Kingdom. The court will take account of a number of specified factors when considering the interest of justice, including the requested person’s connections with the United Kingdom.

    Additional potential bars

    For Part 2 cases, hostage-taking considerations may also act as a bar to extradition (section 83). 

    For Part 1 cases, extradition may be barred if the person has previously been extradited to or transferred to the United Kingdom and the consent of the territory from which the person was previously extradited is required for further onward extradition and has not been given (sections 18, 19 and 19A).

    Extradition may be barred or the proceedings adjourned if the requested person’s physical or mental condition makes it unjust or oppressive to extradite the person (Part 1, section 25; Part 2, section 91). 

    Courts have an implied jurisdiction to order a person’s discharge if extradition would constitute an abuse of process and the UK courts have considered what can amount to an abuse of process.

  39. 20.

    Does your state extradite its own nationals and residents?

  40. The UK extradites its own nationals and residents. Nationality or residence may be relevant for the forum bar (see question 19) or for an assessment of whether extradition would involve a violation of article 8 of the ECHR (see question 21).

  41. 21.

    Are potential breaches of human rights after extradition considered in the extradition process?

  42. The final consideration at an extradition hearing is whether a person’s extradition would be compatible with the ECHR (Part 1, section 21; Part 2, section 87). For Part 1 accusation cases, the court will also have to consider proportionality (section 21A). Section 21A sets out a number of specified matters, which the judge must take into account when deciding whether extradition would be disproportionate: the seriousness of the conduct, the likely penalty if convicted and the possibility of the requesting territory taking less coercive measures. 

    It is often alleged that violations of the ECHR will take place following extradition. Articles 3, 5, 6 and 8 of the ECHR are most commonly relied on in extradition cases to show a prospective violation.

    There is a rebuttable presumption that a member state of the Council of Europe will fulfil its obligations under the ECHR. Diplomatic assurances may be given by a requesting territory to try to establish that there is no risk of a violation of a Convention right and these will be assessed using the approach set out in Othman (Abu Qatada) v. UK (2012) 55 EHRR 1.

    Article 3 (prohibition of torture)

    A requested person must demonstrate substantial grounds for believing that there is a real risk of receiving treatment that would breach Article 3 after extradition and often prison conditions in the country requesting extradition will be relied on to suggest a potential breach of Article 3.

    Article 5 (right to liberty and security)

    Article 5 can be relied on to prevent extradition if there is a real risk of a flagrant violation that might involve, for example, arbitrary detention for many years without any intention to bring a person to trial. 

    Article 6 (right to a fair trial)

    Extradition will violate Article 6 if the requested person has suffered, or there is a real risk that he or she will suffer, a flagrant denial of justice. A flagrant denial of justice means a trial that is manifestly contrary to the provisions of Article 6 or the principles it embodies.

    Article 8 (right to respect for private and family life)

    It is very difficult to show that extradition will involve a violation of Article 8 as hardship is not sufficient. The court can consider the gravity of the offence, the potential violation of the Article 8 rights of other family members, including children, and the length of any sentence left to serve.

    If a judge finds that extradition is compatible with a requested person’s rights under the ECHR, then in a Part 1 case the judge will order extradition and in a Part 2 case it will be sent to the Secretary of State (see question 24). However, an appeal can also be brought under section 108 on human rights grounds at any time before extradition takes place (see question 25).

  43. 22.

     Can a person consent to extradition, and what is the procedure? Is consent irrevocable?

  44. For Part 1, the consent procedure is explained and consent to extradition is requested (see 10) at an initial hearing. A person may consent at any time during the extradition process (section 45). Consent is irrevocable and must be given before the court in writing (sections 8(3)(c) and 45). Consent results in an immediate extradition order and the loss of any right of appeal. Once consent is given, a person should be removed within 10 days but this period can be extended (section 47).

    For Part 2, the consent procedure is explained and consent to extradition is requested (see question 10) at the first hearing. A person may consent at any time, while their case is being considered by the court or the Secretary of State (sections 127 and 128). Consent is irrevocable and must be given before the court in writing. Consent results in an immediate extradition order and the loss of any right of appeal. Once consent is given, a person should be removed with 28 days of when the Secretary of State orders extradition but this period can be extended (section 117).

  45. 23.

    Is there a speciality protection? How is it provided? Does it apply if a person consents to extradition?

  46. There is a speciality protection and it is dealt with by the court for Part 1 cases (section 17) (see question 19) and by the Secretary of State for Part 2 cases (see question 24). The speciality protection applies even if a person consents to extradition.

  47. 24.

    If there is a political decision at the end of the extradition process, what factors can be considered?

  48. For Part 2 cases, if the court sends the case to the Secretary of State (see question 10), he or she must consider whether any of the three specific bars applies: risk of death penalty, speciality or earlier extradition, or transfer to the United Kingdom (sections 94 to 96A). A requested person has four weeks from the day their case is sent to the Secretary of State to make representations indicating that any of these bars applies (section 93, paragraphs (5) and (6)). If the Secretary of State finds that none applies, he or she will make an order for extradition under section 93(4).

  49. 25.

    What ability is there to appeal against or judicially challenge decisions made during the extradition process? What are the requirements for any appeal or challenge?

  50. Sections 26 to 34 govern appeals under Part 1 and sections 103 to 116 govern appeals under Part 2. An appeal to the High Court may be on a question of law or fact and can be brought by the requesting territory or the requested person. Permission is required and will be granted if the Court finds a ground of appeal is reasonably arguable. For Part 2 cases, an appeal by the requested person cannot be heard until after the Secretary of State has made his or her decision and the appeal can be against the decision of the judge or the Secretary of State (or both).

    Notices of application for leave to appeal must be filed at the High Court and served on the respondent (and any interested party) within seven days for Part 1 cases and 14 days for Part 2 cases (sections 26(4) and 103(9)). 

    To adduce fresh evidence on appeal, that evidence must not have been available at the extradition hearing and it must be decisive. 

    A further appeal can be made to the Supreme Court but only if the High Court has certified a point of law of public importance and leave is given by the High Court or the Supreme Court (Part 1, section 32; Part 2, section 114). 

    An appeal can be brought on human rights grounds at any time before extradition takes place (section 108). The High Court will consider the appeal only if it is necessary to avoid real injustice and the circumstances are exceptional and make it appropriate to consider the appeal. 

  51. 26.

    What are the time limits for the extradition process? How long does each phase of the extradition process take in practice?

  52. For Part 1 cases, after being arrested, a person must be brought before a court as soon as possible for an initial hearing. At the conclusion of this hearing, if the case is to be contested, the extradition hearing must start within 21 days of the arrest (section 8, paragraphs (1)(a) and (4)). It is not unusual for an extradition hearing to start immediately to satisfy this requirement, but then be adjourned to a future date. 

    For part 2 cases, after being arrested, a person must be brought before a court as soon as possible (sections 72 and 74). The extradition hearing must begin within two months of the initial hearing or, if there has been a provisional arrest, then within two months of the judge receiving the certified request. It is common practice for a judge to start a hearing before the end of the required period and then adjourn. An extradition hearing in Part 2 cases can take a number of months. The requested person has four weeks after their case is sent to the Secretary of State to make representations (see question 24) and the Secretary of State has two months from receiving the case to make a decision, although the Secretary of State can apply for an extension of this period. 

    Notices of application for leave to appeal must be filed at the High Court and served on the respondent (and any interested party) within seven days for Part 1 cases and 14 days for Part 2 cases (sections 26(4) and 103(9)). 

    For Part 1 cases, a person who does not appeal must be removed within 10 days of the expiry of the seven-day period allowed for giving notice of application for leave to appeal or any later date fixed by the judge after an application by the requesting territory (section 35(3)). The requesting territory can seek an extension of time from the judge (section 35(4)(b)). Similar provisions apply under section 36 following unsuccessful appeals to the High Court or Supreme Court. 

    Part 2 makes similar provision for removal within 28 days following the expiry of the 14-day period allowed to lodge a notice of application for leave to appeal against the Secretary of State’s order for extradition if no application is made (section 117) or following an unsuccessful appeal (section 118).

  53. 27.

    In what circumstances may parallel proceedings delay extradition?

  54. Extradition cannot take place until the final determination of any asylum claim (Part 1, section 39; Part 2, section 121). For Part 1 cases, extradition can take place if it is to a safe third country (section 40). 

    If a person is charged with an offence in the United Kingdom, the extradition proceedings must be adjourned until the UK proceedings have concluded (Part 1, sections 8A and 22; Part 2, sections 76A, 88 and 214).

    If a requested person is serving a prison sentence in the United Kingdom, the proceedings may be adjourned (Part 1, sections 8B and 23; Part 2, sections 76B and 89). 

  55. 28.

    What provision is made for legal representation of the requesting state or the requested person?

  56. The requested person can be legally represented. The person will be able to apply for publicly funded legal representation but his or her means will be assessed to decide whether he or she is eligible to receive it. 

    The requesting state is normally represented by the Crown Prosecution Service. The requesting state can instruct private lawyers to represent it but this rarely happens.

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Questions

  1. 1.

    Are extradition proceedings regulated by domestic legislation, treaties or both?


  2. 2.

    Is there a central register of extradition treaties that your state has entered into?


  3. 3.

    Do special extradition arrangements apply to certain foreign states, for example states that are geographically proximate, or politically, legally or economically closely linked?


  4. 4.

    Is extradition possible to states that have no bilateral or multilateral extradition treaty with your state if they are party to an international convention?


  5. 5.

    Is extradition possible to states that are not extradition treaty partners as an ad hoc arrangement?


  6. 6.

    For which offences is extradition from your state allowed?


  7. 7.

    Is there a requirement for double (dual) criminality? How is this assessed?


  8. 8.

    How would your state deal with a request that includes an offence for which extraterritorial jurisdiction is claimed?


  9. 9.

    What must be included as part of a valid extradition request made by the foreign state?


  10. 10.

    What are the stages of the extradition process?


  11. 11.

    If an initial political decision is required, what factors can be considered?


  12. 12.

    Is provisional arrest, before the extradition request is received, possible?


  13. 13.

    Must a domestic arrest warrant be issued or can an Interpol red notice be used to carry out a provisional arrest?


  14. 14.

    What is required to apply for a domestic extradition arrest warrant?


  15. 15.

    What rights does the requested person have while under arrest?


  16. 16.

    Is bail available in extradition proceedings?


  17. 17.

    If so, what are the factors that a court will take into account in deciding whether to grant bail?


  18. 18.

    Can the court impose conditions when granting bail? What conditions can be, and usually are, imposed?


  19. 19.

      What bars can be raised to resist extradition?


  20. 20.

    Does your state extradite its own nationals and residents?


  21. 21.

    Are potential breaches of human rights after extradition considered in the extradition process?


  22. 22.

     Can a person consent to extradition, and what is the procedure? Is consent irrevocable?


  23. 23.

    Is there a speciality protection? How is it provided? Does it apply if a person consents to extradition?


  24. 24.

    If there is a political decision at the end of the extradition process, what factors can be considered?


  25. 25.

    What ability is there to appeal against or judicially challenge decisions made during the extradition process? What are the requirements for any appeal or challenge?


  26. 26.

    What are the time limits for the extradition process? How long does each phase of the extradition process take in practice?


  27. 27.

    In what circumstances may parallel proceedings delay extradition?


  28. 28.

    What provision is made for legal representation of the requesting state or the requested person?