What is extradition?

Extradition is the mechanism whereby states request the return of individuals from other states when they are either accused of criminal offences or are wanted to serve a sentence.

Which countries does the UK have extradition treaties with?

Under The Extradition Act 2003 the world is effectively divided into three –

• Countries who operate the European Arrest Warrant system:

Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Gibraltar, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, The Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.

• Countries who the UK has existing extradition arrangements with:

Albania, Algeria, Andorra, Antigua and Barbuda, Argentina, Armenia, Australia, Azerbaijan, The Bahamas, Bangladesh, Barbados, Belize, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Brunei, Canada, Chile, Colombia, Cook Islands, Cuba, Dominica, Ecuador, El Salvador, Fiji, The Gambia, Georgia, Ghana, Grenada, Guatemala, Guyana, Hong Kong Special Administrative Region, Haiti, Iceland, India, Iraq, Israel, Jamaica, Kenya, Kiribati, Lesotho, Liberia, Libya, Liechtenstein, Macedonia, FYR, Malawi, Malaysia, Maldives, Mauritius, Mexico, Moldova, Monaco, Montenegro, Nauru, New Zealand, Nicaragua, Nigeria, Norway, Panama, Papua New Guinea, Paraguay, Peru, The Republic of Korea, Russian Federation, Saint Christopher and Nevis, Saint Lucia, Saint Vincent and the Grenadines, San Marino, Serbia, Seychelles, Sierra Leone, Singapore, Solomon Islands, South Africa, Sri Lanka, Swaziland, Switzerland, Tanzania, Thailand, Tonga, Trinidad and Tobago, Turkey, Tuvalu, Uganda, Ukraine, Uruguay, The United Arab Emirates, The Unites States of America, Vanuatu, Western Samoa, Zambia and Zimbabwe.

• Everyone else.

Proceedings under the European Arrest Warrant scheme take place under Part 1 of the Extradition Act 2003.

For other countries with which the UK has existing extradition arrangements there is a different procedure under Part 2 of the Extradition Act 2003.

For countries that are not contained on either list there are procedures that enable the UK to enter into ‘special extradition arrangements’ with them for the purpose of individual cases.

Special procedures also exist for countries who are not on either list but who are parties to certain International Conventions.

In these circumstances proceedings are conducted under Part 2 of the Extradition Act 2003.

What happens if there is a request for my extradition?

If an extradition request is received you are liable to arrest and will be taken to Westminster magistrates’ court in London.

It is possible to be arrested on a preliminary warrant if an extradition request is imminently anticipated.

Am I entitled to speak to a lawyer?

If you are arrested on an extradition warrant you will not be interviewed. You will be taken to court as soon as possible. Whilst in police custody you are entitled to speak to a lawyer.

At court you are entitled to be represented. If you are in custody it is possible for your family to instruct a lawyer on your behalf to deal with you at court.

Am I entitled to legal aid?

You should speak to an extradition lawyer to establish whether you will be eligible for legal aid. Legal aid is available but is subject to means testing.

At court you will be entitled to speak to a duty solicitor for free on your first appearance. After this you will have to arrange for your own lawyer – either by applying for legal aid or instructing your own solicitor privately.

Can I just agree to go back to the country that is requesting me?

You will be given the opportunity to consent to your extradition but in doing so you will lose certain rights.

Will I get bail?

If you are accused of an offence you have a right to bail throughout the extradition process but the court may refuse you bail if it fears that you will fail to turn up to court, interfere with witnesses or commit further offences. They may also refuse bail where it is shown that the extradition offence was committed whilst on bail abroad.

If you have been convicted abroad and are wanted to serve a sentence you have no right to bail but you are still entitled to apply.

An experienced extradition lawyer will be able to advise you as to the likelihood of you being granted bail and can to maximise your chances of obtaining bail.

What are the defences to extradition?

Requests can sometimes be defeated because of a challenge to the warrant or procedure or they can be defeated by successfully raising a bar to extradition.

Bars to extradition include the following:

• Double jeopardy – you have already been dealt with for these offences
• Extraneous considerations – the warrant is either issued to persecute you, or you would be prejudiced on your return as a result of, your race, religion, gender, sexuality or political beliefs
• Passage of time – it would be unfair or oppressive to extradite you after the time that has past since the offence or conviction
• Age – you couldn’t have committed the act in question because at the time you were below the criminal age of responsibility
• Hostage taking considerations – that you are accused of a hostage taking offence and communication between you
• Specialty – if there are no ‘specialty’ arrangements with the requesting state (specialty is a technical legal rule that protects you from being dealt with for offences that are not contained within the extradition warrant)
• Prior extradition or return to the UK – you have previously been returned to the UK from another country and that country’s consent is required prior to extraditing you again or you have been returned to the UK from the International Criminal Court and the ICC’s consent is required prior to extraditing you again
• Forum – the offences should properly be prosecuted in the UK

You can also defeat the request for extradition if you can demonstrate:

• That you were convicted in your absence, that you were not voluntarily absent that you would not be entitled to a retrial
• That extradition would not be compatible with your human rights under the European Convention on Human Rights
• That your physical or mental health is such that it would be unjust or oppressive to return you

In addition you may argue that your extradition would be an abuse of process.

What if evidence do they have to show to extradite me?

Some countries must show a prima facie case to extradite you but under the European Arrest Warrant scheme and also for certain Part 2 countries there is no requirement to show any evidence.

How long will the process take?

The extradition hearing under Part 1 of the Act is meant to commence within 21 days of your first appearance at court. In practice this date will often be adjourned but the whole process is likely to be completed in around 2 to 3 months depending on court listings.

Under Part 2 proceedings generally take a little longer and in general will take 6 to 9 months depending on court listings.

The length of any final hearing is dependent on the complexity of the case. In a simple case the hearing can take as little as 30 minutes. In a complex case it can take weeks.

Who makes the final decision on my extradition?

In Part 1 cases a judge makes the final decision as to whether you are extradited.

In Part 2 cases the final decision is taken by the Home Secretary. In Part 2 cases a judge decides whether or not your case should be sent to the Home Secretary for their decision.

Can I appeal?

If you lose you can appeal to the High Court but there are strict time limits for doing so.

If you win the requesting country can also appeal to the High Court.

From the High Court it is only possible to appeal to the Supreme Court on a point of law of general public importance.

If I think there might be request for my extradition what should I do?

If you believe that you may be subject to extradition proceedings you should contact a lawyer to discuss your options. It may be possible to make enquiries here or abroad to establish the position and put your mind at ease. In certain circumstances it is possible to ‘compromise’ the request by engaging lawyers abroad to assist you in dealing with outstanding matters without recourse to extradition.

Author

Thomas Garner, Extradition Solicitor

Gherson, London

www.gherson.com

DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to gherson directly.