Appendix A
CURRENT EXTRADITION PROCEDURES IN THE
UNITED KINGDOM
Introduction
This Home Office note outlines the main stages and
procedures in extradition requests made to the United Kingdom.
It is intended simply as an introduction to a complex subject;
it is neither comprehensive nor a statement of law.
This guide does not explain the procedures for Scotland
which, because of its separate legal system, are slightly different
from those for the rest of the United Kingdom. A separate guide
to Scottish procedure will be forthcoming on the Scottish Executive
web-site.
Extradition provides for the return of persons accused
or convicted of serious offences from the United Kingdom to other
jurisdictions, or vice versa. The domestic legal framework for
this is the Extradition Act 1989. The United Kingdom has general
extradition relations with over 100 countries under the provisions
of three main schemes: the European Convention on Extradition
(ECE), the Commonwealth scheme for the Rendition of Fugitive Offenders;
and a number of bilateral treaties. The majority of extraditions
from the United Kingdom take place under the ECE.
We also have extradition relations with co-signatories
of international conventions which contain extradition provisions,
relating to specific forms of very serious crimes. The Act also
provides for the negotiation of a special arrangement for extradition
with states with whom no other provision exists. These types of
provisions are only rarely used.
Requests for Extradition
Requests to the United Kingdom can be made in two
ways:
- provisional arrest request:
in cases of urgency. The request is generally made through police
channels, for arrest on the basis of a domestic warrant; or
- full order request:
where the full papers are submitted through the diplomatic channel
in advance of the arrest.
Generally the information required to accompany the
request will include:
(a) particulars of the person whose return is requested;
(b) particulars of the offence of which he is accused
or was convicted;
(c) in the case of a person accused of an offence,
a warrant or a duly authenticated copy of a warrant for his arrest
issued in the requesting state, or for a provisional arrest, details
of such a warrant;
(d) in the case of a person unlawfully at large after
conviction of an offence, a certificate or a duly authenticated
copy of a certificate of the conviction and the sentence, or for
provisional arrest, details of the conviction.
If the fugitive contests the request, it may then
be subject to a lengthy procedure. The Act provides for the expedited
return of fugitives who waive their rights.
The Extradition Process
Extradition from the United Kingdom requires decisions
by both Ministers and the courts:
Stage in Extradition Process
|
Who makes the decision? |
Authority to Proceed |
Ministers
|
Committal |
District Judge
|
Habeas Corpus |
Divisional Court
|
Appeal |
House of Lords Appellate Committee
|
Surrender |
Ministers
|
Decisions of Ministers and District Judges may be subject to judicial
review.
Authority to Proceed (ATP/OTP)
Where a request is made for the provisional arrest of a
fugitive, the fugitive will be arrested before an ATP/OTP is signed.
He is brought before the District Judge, who sets an initial period
—generally between 40 and 60 days depending on the scheme—for
the receipt of the formal extradition request and supporting documents,
and the signing of the ATP/OTP by the Secretary of State. If the
request is not received within this period, or if the requisite
supporting documents are not supplied, the fugitive is released
immediately. The District Judge will also decide whether the fugitive
should be remanded in custody, or can be released on bail. Where
a full order request is made through the diplomatic channel,
the ATP is signed before the fugitive is arrested.
Statutory Bars to Extradition and General Restrictions on Return
In order to protect fugitives' rights, extradition from the United
Kingdom is barred by statute if:
- the requirement for dual criminality is not satisfied. This
requires the offence to be a crime in both the requesting and
requested states. In ECE and Commonwealth cases, it must also
be punishable in both states by a minimum sentence threshold (normally
12 months imprisonment); in bilateral treaty cases, a list of
offences is generally used;
- the offence for which extradition is requested is of a political
character;
- the offence is one found in military law but not in general
criminal law;
- the request is made in order to prosecute or punish the fugitive
on account of his race, faith, nationality or political opinions,
or if he might be denied a fair trial for these reasons;
- the fugitive has previously been acquitted or convicted of
the same crime for which his extradition is sought.
There are further bars to extradition if it would be unjust or
oppressive to extradite the wanted person.
The United Kingdom will not extradite for an offence carrying
the death penalty in the requesting state: in such cases an undertaking
is required that the death sentence would not be carried out.
If the papers are in order, the Secretary of State may decide
to issue an ATP. The ATP and the supporting documents are sent
to Bow Street Magistrates' Court for the committal hearing.
Committal Hearing
At the hearing, the extradition request is considered, and the
identity of the fugitive is verified. The District Judge must
be satisfied that the documents have been correctly authenticated
and certified, that the ATP/OTP relates to an extradition crime
and that none of the prohibitions on return applies. If so, he
is required to commit the fugitive to await the Secretary of State's
decision as to whether to order the fugitive's return. In both
Commonwealth and bilateral treaty cases, evidence of a case to
answer (prima facie evidence) is required to be presented
at the Committal hearing. The ECE dispenses with this requirement.
The requesting state is generally represented before the courts
by the Crown Prosecution Service.
Habeas Corpus
Following committal, the fugitive has 15 days to appeal against
the District Judge's decision to commit him by applying to the
Divisional Court for a writ of habeas corpus. During this period,
if such an application is made and proceedings are still pending,
he cannot be returned to the requesting State.
House of Lords
If the fugitive's application for habeas corpus is dismissed,
he may appeal to the House of Lords. It is also open to the requesting
state to appeal a decision to the House of Lords.
Once all the stages before the courts have been completed, the
case returns to the Secretary of State to make a decision on whether
to order surrender.
Representations
In Part III cases involving foreign states and the Hong Kong and
Special Administrative Region, and by analogy in Commonwealth
and bilateral treaty cases, the Secretary of State must give notice
to the fugitive that he is contemplating making an order for his
return and give him the opportunity to make representations against
it. The case, including any representations, is then considered
by the Secretary of State to decide whether to sign an order for
the fugitive's return.
Order for Return
After all the judicial decisions have been completed, the Secretary
of State has two months to decide whether or not to surrender
the fugitive.
If the Secretary of State is satisfied that there are no statutory
bars to the fugitive's extradition, and there appears to be no
other reason why extradition would be wrong, unjust or oppressive,
he may sign an order for the fugitive's return. The fugitive may
apply for permission to seek judicial review of the Secretary
of State's decision. If an application is made, the fugitive cannot
be surrendered while the judicial review proceedings are pending.
Upon return the rule of specialty provides that the fugitive cannot
be charged with any conduct committed before surrender for which
he was not extradited. This is designed to prevent a requesting
state trying someone, on return, for offences completely different
from those for which extradition has been granted and thereby
evading, for example, other barriers to extradition, such as bar
on military offences.
The overall time taken to complete a case can vary considerably
depending, for instance, on its complexity and whether the fugitive
contests extradition. Independence of the judiciary means that
the Secretary of State has no influence over the time a case takes
to clear the judicial stages.
Backing of Warrants
The Backing of Warrants scheme between the United Kingdom and
the Republic of Ireland allows for direct police-to-police co-operation
in the return of wanted fugitives. The warrant must be "backed"
by a court in the requested state, but the scheme dispenses with
the discretionary functions performed by ministers. Full provision
for habeas corpus and appeals is retained, however. A similar
arrangement provides for delivery of fugitives to the International
Criminal Tribunals for Rwanda and former Yugoslavia.
Home Office
24 September 2002
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