Note on Extradition from the Senior Legal
Adviser, Bow Street Magistrates Court
EXTRADITION ACT
2003
The United States of America
All extradition procedures in England and Wales
are conducted at Bow Street Magistrates' Court. The cases are
heard by the Senior District Judge, Mr Timothy Workman, his Deputy
Miss Wickham and, at present, four other District Judges who have
been designated for the purposes of the Act by the Lord Chancellor
under sections 67 and 139 of the Extradition Act 2003 (the Act).
The Extradition Act 2003 has two parts, part
1 and part 2, for extradition to other territories and the two
parts are quite different schemes. The Secretary of State has
the power to designate a territory for the purposes of part 1
or part 2 of the Act. The procedures under part 1 of the Act give
effect to the European Union Framework Decision on the European
Arrest Warrant. All other States with which this country has extradition
arrangements are category 2 territories.
By section 69(1) of the Act the Secretary of
State may by order designate a territory for the purposes of part
2 of the Act. SI 2003 No 3334, The Extradition Act 2003 (Designation
of Part 2 Territories) Order 2003, is the only order made which
designates territories as part 2 territories. The order has been
amended by a number of orders which have redesignated territories
as part 1 territories. By this order the United States of America
was designated as a category 2 territory with effect from 1 January
2004. (Request received before 1 January 2004 are dealt with under
the Extradition Act 1989, see SI 2003 No 3103 The Extradition
Act 2003 (Commencement and Savings) Order 2003 as amended by SI
2003 No The Extradition Act 2003 (Commencement and Savings) (Amendment
No. 2) Order 2003.) Although there are still a few requests coming
through under the Extradition Act 1989, the majority of cases
are now under the Extradition Act 2003.
By section 71(4) of the Extradition Act 2003
if the Secretary of State by Order designates a category 2 territory,
then that territory need provide information rather than evidence
justifying the issue of a warrant in a extradition request. There
is a similar provision in section 73(5) regarding the issue of
a provisional warrant. By section 84(7) if the Secretary of State
designates a category 2 territory then the judge at the extradition
hearing does not have to decide, in the case of a person accused
of an offence, whether there is evidence which would be sufficient
to make a case requiring an answer by the person if the proceedings
were the summary trial of an information against him. There is
a similar provision in section 86(7) of the Act whereby if the
judge is considering a case where a person has been convicted
in his absence if the Secretary of State has designated the territory
then the judge does not have to decide whether there is evidence
which would be sufficient to make a case requiring an answer by
the person if the proceedings were the summary trial of an information
against him.
In other words if the Secretary of State designates
a territory under these sections information rather than evidence
is required to issue a warrant, and the judge does not have to
consider whether there is a case to answer at the extradition
hearing.
In all cases the judge does have to be satisfied
that the allegation amounts to an extradition crime.
By SI 2003 No 3334, The Extradition Act 2003
(Designation of Part 2 Territories) Order 2003, the Secretary
of State designated the United States as for the purposes of section
71(4), 73(5), 84(7) and 86(7). Forty-one other States were also
designated under those sections in that order. They include our
Commonwealth partners, who were also required to provide evidence
for the issue of a warrant, and of a case to answer under the
1989 Act.
The other matter that SI 2003 No 3334, The Extradition
Act 2003 (Designation of Part 2 Territories) Order 2003 dealt
with was the relevant period for receipt by the judge of the request,
certificate and designation orders. In the case of the United
States of America this is 65 days.
There have been a substantial increase in persons
arrested for extradition in the past year and the indications
are that this will continue to grow. Additional judicial and courtroom
resources are going to be needed soon. Annexed with this document
are the numbers of files opened under part 1 and part 2 of the
Extradition Act month by month in 2004 and 2005 to date.
Whilst the number of cases under the Extradition
Act 2003 have grown, this is not so for request from the United
States of America. There have been two files for the USA opened
in January this year, three in February, the persons arrested
are co-defendants in the USA, two in March, three in April, one
in May, one in June, one in July, one in August, none September
and one in October, that is a total of 15 this year. There are
now 11 cases outstanding including the three hander, of which
five are outstanding from last year.
Of the outstanding cases two would be described
as terrorist activity, and one of these is the oldest case outstanding
under the 2003 Act.
Elizabeth Franey
15 November 2005
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