Extradition (Provisional Arrest) Act 2020

Policy background

4. Prior to the Act, when UK police became aware that a person was wanted for criminal prosecution or to serve a sentence by authorities in a territory which had been designated for the purposes of Part 2 (a "category 2 territory"), they were required by law to seek a warrant from a judge before arresting that person. In contrast, UK police could immediately arrest an individual on the basis of a warrant issued by a territory which had been designated for the purposes of Part 1 (a "category 1 territory") as long as the warrant had been properly issued by the requesting authority and certified by the National Crime Agency ("the NCA"). Police do not need to apply for a separate domestic warrant from a court in the UK for a Part 1 request.
5. The usual way in which police became aware of a person wanted by a category 2 territory is through the circulation of alerts on Interpol channels. Interpol alerts from all countries are systematically available to police and Border Force officers. Prior to the Act circulation of these alerts could result in law enforcement officers encountering an individual whom they understood, on performing a simple database check, to be wanted for an offence by another country, or who had absconded following a conviction in another country but are unable to arrest them without first applying to a judge for an arrest warrant. This application takes at least a matter of hours creating a possibility that the person concerned could offend or abscond before being detained.
6. Many countries (including most EU Member States) afford their police forces the ability to arrest on the basis of Interpol alerts and other alerts seeking the arrest of wanted persons. This Act creates a power for the police and other relevant UK law enforcement officers to arrest an individual on the basis of such an alert without a UK warrant for arrest having been issued first. While Interpol Red Notices are, in practice, a common way in which requests for arrest for extradition purposes are communicated internationally, the power in this Act is not limited to Red Notices and would apply in respect of any international request for arrest, provided it complies with the requirements set out in the Act.
7. The Act provides a number of safeguards with regard to the availability of the new power of arrest. The new power of arrest only applies where a certificate has been issued in respect of a request for arrest. One of the criteria for issuing a certificate is that the request must have been made by an authority in a specified category 2 territory. The list of specified category 2 territories is set out in a Schedule inserted by this Act (new Schedule A1). The territories listed in new Schedule A1 are Australia, Canada, Liechtenstein, New Zealand, Switzerland and the United States of America. The Act also provides that the EU Member States (as of 31 December 2020), Norway and Iceland are inserted into Schedule A1 in the event that they become category 2 territories; this will occur in relation to the EU Member States if the UK does not agree a new extradition relationship with the EU by the end of the Transition Period. Norway and Iceland will be moved into Part 2 in any event.
8. The new power of arrest has been made available in respect of requests for arrest issued by these countries because they are existing UK extradition partners, and the UK has confidence in their international arrest alerts and extradition processes. The amendments to the 2003 Act made by this Act include a power to specify further countries by statutory instrument, subject to the affirmative procedure. Additional countries could therefore be specified in the future, where both Houses of Parliament approve the relevant secondary legislation.
9. A further safeguard is that the new power of arrest only applies in relation to serious offences. For a request for arrest to be certified, the offence must be punishable in the UK with a custodial sentence of three years or more and the conduct constituting the offence must be sufficiently serious to make it appropriate to issue the certificate. The designated authority must also be satisfied the requesting territory has arrangements in place which ensure requests are underpinned by a domestic arrest warrant or conviction in that territory.
10. Only the designated authority may issue a certificate in respect of a request for arrest, with the effect that the power of arrest applies. The designated authority is the National Crime Agency (NCA), which is the UK’s National Central Bureau for Interpol. As a matter of policy, the designated authority is responsible for ensuring that requests in respect of which a certificate is issued are clearly identifiable on the databases available to front-line officers, and for ensuring that information on those databases is up-to-date and accurate. The Act gives the Secretary of State the power to designate a different authority (or authorities) using a statutory instrument, subject to the negative resolution procedure, in the future.
11. The Act provides that, after arrest, the person must be brought before a judge as soon as practicable. Failure to comply with this requirement will mean that, upon application, the judge must discharge the person. At that hearing, the judge must decide whether a warrant of arrest would have been issued in respect of that person, in order to determine whether the proceedings should continue. Information and evidence that would justify the issue of the warrant will need to be put forward for these purposes. The judge will be able to adjourn the proceedings, up to a maximum of 72 hours, to allow more evidence or information to be put forward in appropriate cases.
12. If the judge decides that a warrant would have been issued, the extradition process will continue in the normal way. The Act therefore enables wanted persons who fall within the scope of the legislation to be brought into extradition proceedings more efficiently, in order to manage the risk that they might otherwise be at liberty in the UK and able to abscond or offend. However, the legislation does not alter the subsequent process by which it is determined whether a person should be extradited from the UK. Anyone arrested under this new power benefits from the existing safeguards available under Part 2 of the 2003 Act in relation to the decision to extradite. These safeguards include the person not being extradited if the court considers that their extradition to the category 2 territory would breach their human rights or considers the request to be politically motivated. If the court finds that their extradition is not barred, the Home Secretary cannot order their extradition if they could be, will be, or have been sentenced to death unless she or he receives a credible assurance that the death penalty will not be imposed or, if imposed, will not be carried out.