Extradition is the process by which a person suspected or convicted of a crime in one country can be sent to that country from a second country. Whether or not the extradition of an individual is possible largely depends on:
- whether an extradition treaty or convention exists between the two countries; and,
- the seriousness of the crime.
To be eligible for extradition an individual must generally be suspected or convicted of a crime which could result in a 12-month prison sentence in either of the countries involved.
Extradition law is extremely complex – the following article is intended to provide a brief overview.
The Extradition Act 2003
On 1 January 2004 new extradition law came into force in the UK. The Extradition Act divides countries, with which the UK has extradition treaties, into two categories: Category 1 and Category 2. The extradition procedure varies depending on which category a country falls into. A third category exists in relation to countries with which the UK has an extradition agreement in relation to specific crimes. A full list of countries with which the UK has a current extradition agreement can be obtained from the Home Office.
Many of the changes introduced under the new legislation were intended to address the increased global threat of terrorism in the post-9/11 world.
Extradition should not be confused with ‘extraordinary rendition’. Extradition involves a long and transparent legal process. Extraordinary rendition takes place completely outside of the legal system and involves the secret transportation of suspects from one country to another for interrogation. The country to which the suspect is transported will generally have ‘different’, or less strict, rules on what constitute acceptable interrogation methods.
European Arrest Warrants
European Arrest Warrants have largely replaced the extradition process between EU member states (Category 1 countries under the new legislation). The courts in an EU country may issue a European Arrest Warrant in respect of an individual:
- accused of a crime which carries a sentence of at least one year in prison; or,
- convicted of a crime and sentenced to at least four months in prison.
An EU state arresting such an individual must surrender them to the country which issued the warrant within 90 days.
An EU state cannot refuse to comply with a European Arrest Warrant on the basis that the individual is a national of the arresting country. For some crimes an EU state must comply with a Warrant even if the alleged crime is not defined as such in that country.
Extradition from the UK
A request to extradite an individual from the UK is also known as an ‘export’ or ‘incoming’ extradition request. (A request to extradite someone to the UK may be known as an ‘import’ or ‘outgoing’ extradition request.)
A country requesting extradition from the UK may either arrange their own legal representation or be represented by the UK’s Crown Prosecution Service. All extradition requests to the UK start at the City of Westminster Magistrates’ Court. Extradition cases were heard at the famous Bow Street Magistrates’ Court until this closed in 2006.
When a request for extradition is made the police will apply to the court for a warrant in order to arrest the individual sought. The papers requesting extradition will then be checked by the Home Secretary to ensure the correct procedures have been followed. If satisfied, the Home Secretary will sign an Authority to Proceed. The case will then go before a judge who will decide whether extradition is justified. If the request is approved the individual facing extradition can appeal the decision.
To secure extradition from the UK, the country seeking extradition must usually show that there is sufficient evidence to bring a court case against the individual to be extradited. However, the UK has now entered into an agreement with some countries which means that they do not have to satisfy the UK court that there is sufficient evidence before extradition can take place. This rule applies to EU countries, the USA, Canada, Australia and New Zealand.
In most cases this arrangement is reciprocal meaning that the UK does not have to provide evidence in order to secure extradition of an individual from one of those countries. However, due to a hiatus in the implementation of the necessary law, there is no reciprocal arrangement between the USA and the UK. This means that whilst the UK must supply evidence to extradite from the USA, the USA does not have to provide evidence to extradite from the UK.
Circumstances in Which an Individual will Not be Extradited
There are circumstances which will always prevent extradition taking place. These include cases where the individual’s human rights may be breached or where they may face the death penalty if they are extradited.