Extradition (Provisional Arrest) Bill [HL]

Explanatory Notes

Policy background

4 At present, when UK police become aware that a person is wanted for criminal prosecution or to serve a sentence by authorities in a territory which has been designated for the purposes of Part 2 (a "a category 2 territory"), they are required by law to seek a warrant from a judge before arresting that person. In contrast, UK police can immediately arrest an individual on the basis of a warrant issued by a territory which has been designated for the purposes of Part 1 (a "category 1 territory") as long as the warrant has 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.

5 The usual way in which police become aware of a person wanted by a category 2 territory is through the circulation of alerts through Interpol channels. Interpol alerts from all countries are systematically available to police and Border Force officers. The circulation of these alerts can result in law enforcement officers encountering an individual whom they understand, on performing a simple database check, to be wanted for an offence by another country, or to have absconded following a conviction in another country but being unable to arrest them without first applying to a judge for an arrest warrant. That application takes at least a matter of hours and creates a possibility that the person concerned could offend or abscond before being detained.

6 Many countries (including most EU Member States) already afford their police forces the ability to arrest on the basis of Interpol alerts seeking the arrest of wanted persons. This Bill 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 Bill 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 Bill.

7 The Bill provides for a number of safeguards with regard to the availability of the new power of arrest. The new power of arrest will only apply 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 Bill (new Schedule A1). The territories currently listed in new Schedule A1 are Australia, Canada, Liechtenstein, New Zealand, Switzerland and the United States of America. The new power of arrest has been made available in respect of requests for arrest issued by these six countries because the UK has a high level of confidence in them as extradition partners, in their criminal justice systems and in their use of extradition. The amendments to the 2003 Act made by this Bill include a power to specify further countries by statutory instrument, subject to the affirmative procedure. Additional countries in whose law enforcement systems the UK has a similar high level of confidence could therefore be specified in the future, where both Houses of Parliament approve the legislation. Should the UK lose access to the EAW, a statutory instrument may be made to extend this arrest power to some or all of the EU Member States, subject to the affirmative procedure.

8 A further safeguard is that the new power of arrest will only apply in relation to serious offences. In order 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.

9 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 will be specified in regulations made by the Secretary of State. It is intended that the NCA, which is the UK’s National Central Bureau for Interpol, will be the designated authority. As a matter of policy, the designated authority will also be 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.

10 The Bill provides that, after arrest, the person must be brought before a judge within 24 hours of the arrest. Failure to comply with this requirement will mean that, upon application, the judge must discharge the person. At the 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.

11 If the judge decides that a warrant would be issued the extradition process will continue in the normal way. The Bill will therefore enable 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 will benefit 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 receives a credible assurance that the death penalty will not be imposed or, if imposed, will not be carried out.


7th January 2020