Extradition (Provisional Arrest) Act 2020

Overview of Parts 1 and 2 of the 2003 Act

14. Part 1 of the 2003 Act implements Council Framework Decision 2002/58/JHA establishing the EAW scheme and currently deals with extradition to the EU Member States, Norway, Iceland and Gibraltar. It can also be used to implement other warrant-based extradition schemes. The EAW scheme is based on the principle of mutual recognition of judicial systems by EU Member States and requires judicial authorities to recognise and act upon an arrest warrants issued by the judicial authority of another Member State. Part 1 provides that an arrest warrant certified by the designated authority as having been properly issued by a judicial authority of a category 1 territory (i.e. a territory designated for the purposes of Part 1 by order under section 1 of the 2003 Act) attracts an immediate power of arrest.
15. Part 2 of the 2003 Act deals with extradition to category 2 territories (i.e. territories designated by order under section 69 of the 2003 Act). These are territories with which the UK has formal extradition arrangements other than category 1 territories. Currently, Part 2 requires that a domestic warrant of arrest be obtained prior to the arrest of a person sought for extradition purposes.

Part 1 of the 2003 Act

16. Part 1 enables UK authorities to process and execute incoming warrants from category 1 territories. The procedure under Part 1 can be summarised as follows:

• On receipt of a warrant from a category 1 territory, the designated authority, which is the NCA, must decide whether to issue a certificate. Where the NCA issues a certificate, the person may be arrested pursuant to the warrant.
• Where the person is arrested, the person is brought before a judge as soon as practicable. At the initial hearing, the judge will decide whether the person is the person named in the warrant. In cases where the judge decides that that is the case, the judge must fix a date for the extradition hearing.
• At the extradition hearing, the judge must decide whether the offence described in the warrant is an extradition offence. If the judge is satisfied that it is, he or she must consider whether the person’s extradition is barred by any of the reasons set out in Part 1 of the 2003 Act. If the judge is satisfied that it is not barred, the judge must order extradition.

17. Part 1 also provides for a person to be arrested before receipt of a warrant in urgent cases (the relevant law enforcement officer must have reasonable grounds for believing that a warrant has been or will be issued). In such cases, the person must be brought before a judge within 48 hours of the arrest. The warrant, together with the certificate issued in respect of that warrant, must be received by the court within this time, although a further 48 hours may be granted if the judge decides that the requirement to produce the documents within the initial time-period could not reasonably be complied with.

Part 2 of the 2003 Act

18. Under Part 2, extradition requests to the United Kingdom and the accompanying arrest of the person concerned can follow one of two paths. The first is a request for the provisional arrest of a person considered known or believed to be present or arriving in the UK and to be at risk of leaving or travelling to another jurisdiction. Such requests are generally made through police channels pending receipt of a full extradition request and supporting documents. The second is a full order request, where the full extradition request and supporting documentation is submitted through the diplomatic channel in advance of arrest.
19. Where the request for extradition is made prior to arrest, the procedure is, in summary, as follows:
    1. On receipt of an extradition request from a category 2 territory, the Secretary of State must decide whether to issue a certificate. Subject to limited exceptions, the Secretary of State must do so and send the request and certificate to a judge.
    2. Where the request and certificate are sent to a judge, the judge may issue a warrant for the arrest of the person concerned if certain conditions are satisfied.
    3. 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.
    4. At the extradition hearing, the judge must consider a number of factors including whether there is an ‘extradition offence’ (as defined in Part 2) and whether the person’s extradition is barred for any of the reasons set out in Part 2. Having addressed these issues, and provided the judge is satisfied 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.
    5. The Secretary of State must decide whether he or she is prohibited from ordering extradition on any of the grounds set out in Part 2. 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.
20. In cases where a request for provisional arrest is made prior to receipt of the extradition request, Part 2 provides that the court may issue a provisional warrant for the arrest of the person concerned if certain criteria are met. These include that the person is, or is believed to be, in the United Kingdom, or is, or is believed to be, on their way to the United Kingdom. Additionally, the judge must have reasonable grounds for believing that the offence is an extradition offence and that there is written evidence (or information in the case of certain category 2 territories) which would justify the issue of a warrant.
21. Where a person is arrested under a provisional warrant, he or she must be brought before a judge as soon as practicable. The request for extradition and certificate must be provided to the judge within 45 days of arrest, unless a longer period has been specified for the requesting territory in the section 69 Order designating that territory as a category 2 territory. Following receipt of these documents, the judge must fix a date for the extradition hearing. The procedure thereafter is the same as for cases where the request for extradition was made prior to arrest.
22. In Scotland, most of the functions which the Secretary of State performs in England, Wales and Northern Ireland in Part 2 cases are performed by the Scottish Ministers.

Other Parts of the 2003 Act

23. Part 3 deals with extradition to the UK and Part 4 with police powers in connection with extradition. Part 5 is concerned with miscellaneous matters.