Part 12: Extradition
79.The extradition of persons to and from the United Kingdom is governed by the provisions of the Extradition Act 2003 (“the 2003 Act”).
80.Part 1 of the Act deals with the surrender of people from the UK to other EU Member States following a European Arrest Warrant (“EAW”).(36)
81.The process in a Part 1 case is, in summary, as follows:
On receipt of an EAW from a Part 1 territory, the appropriate authority, which is the National Crime Agency (“NCA”), must decide whether to issue a certificate.
Where the NCA issues a certificate the person is arrested pursuant to the EAW.
Where the person is arrested, the person is brought before a judge as soon as practicable and, at this initial hearing, the judge must decide whether the person is the person named in the EAW. In cases where the judge decides that that is the case, the judge must fix a date for the extradition hearing.
The extradition hearing takes place. At the hearing, the judge must decide whether the offence listed in the EAW is an “extradition offence” and, if the judge is satisfied that it is, must consider whether the person’s extradition is barred by any of a number of reasons. If the judge is satisfied that the person’s extradition is not so barred, and that it is compatible with the European Convention on Human Rights (“the ECHR”), the judge must order extradition.
82.The person may appeal the decision of the judge to order extradition. The right of appeal lies first to the High Court(37) and then (in England, Wales and Northern Ireland), with leave, to the Supreme Court.
83.If the district judge decides that extradition is barred, and discharges the person, the requesting state also has a right to appeal against this decision.
84.Part 2 of the 2003 Act deals with extradition from the UK to territories which are designated by order for the purposes of that Part. Those territories are territories with which the UK has entered into extradition arrangements (but which are not other EU Member States). Part 2 territories currently include the USA and many Commonwealth countries; a full list of such territories is set out in Annex E.
85.The process in a Part 2 case is, briefly, as follows:
On receipt of a request from a Part 2 territory, the Secretary of State(38) must decide whether to issue a certificate. Subject to limited exceptions, the Secretary of State must issue a certificate (and send the certificate and request to a judge) if the request is valid.
Where the Secretary of State issues a certificate and sends it and the request to a judge, the judge may issue a warrant for the arrest of the person concerned if certain conditions are satisfied.
Where the judge issues a warrant, the person may be arrested and, if the person is arrested, he or she must be brought before the judge as soon as practicable. Where that happens, the judge must fix a date for the extradition hearing.
An extradition hearing then takes place. At the hearing, the judge must consider a number of factors including whether the person’s extradition is barred for any of the reasons set out in the Act. Provided the judge is satisfied that none of the bars to extradition apply and that the person’s extradition is compatible with the ECHR (and nothing else in the relevant sections of Part 2 demands the person’s discharge), the judge must send the case to the Secretary of State for a decision on whether to order extradition.
The Secretary of State must decide whether he or she is prohibited from ordering extradition on any of the grounds set out in the 2003 Act. Provided the Secretary of State is satisfied that the person’s extradition is not prohibited, he or she must order the person’s extradition, unless certain limited exceptions apply.
86.A person may appeal the decision of the judge to send the case to the Secretary of State and/or the decision of the Secretary of State to order extradition. It is open to the requesting state to appeal any decision not to send the case to the Secretary of State. As in Part 1 cases, the right of appeal lies first to the High Court and then (in England, Wales and Northern Ireland), with leave, to the Supreme Court.
87.Part 3 of the 2003 Act deals with extradition to the UK and Part 4 covers police powers.
88.The Coalition Programme for Government included a commitment to “review the operation of the Extradition Act – and the US/UK extradition treaty – to make sure it is even handed”. The Government commissioned such a review by the Rt. Hon. Sir Scott Baker in September 2010 (House of Commons, Official Report, 8 September 2010 column 18WS). The review report(39) was published by the Home Secretary on 18 October 2011 (House of Commons, Official Report, column 62WS to 63WS) and she announced the Government’s response in an oral statement on 16 October 2012 (House of Commons, Official Report, columns 164 to 180; House of Lords, Official Report, columns 1373 to 1383). The review recommended a number of changes to the 2003 Act including changes relating to asylum (see paragraphs 9.47-9.59 of the report), time limits for notice of appeal (see paragraphs 10.3-10.9), and leave to appeal (see paragraphs 10.10-10.16). In addition, in a statement on 9 July 2013 on the decision whether the UK should opt out of those EU police and criminal justice measures adopted before the Lisbon Treaty came into force (Official Report, columns 177 to 193), the Home Secretary announced the Government’s intention to bring forward a number of additional changes to Part 1 of the 2003 Act, including changes on the issues of proportionality, pre-trial detention and dual criminality. The provisions in Part 12 give effect to these changes and make other miscellaneous changes to the 2003 Act.
The provisions in Part 1 give effect to Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States 2002/584/JHA, as amended by Council Framework Decision 2009/299/JHA
In Scotland, references to the High Court are read as references to the High Court of Justiciary.
In Scotland, most of the functions which the Secretary of State performs in England, Wales and Northern Ireland are performed by the Scottish Ministers.
