Extradition: UK law and practice |
CHAPTER 1: INTRODUCTION
1. On 27 March 2014 the House agreed to appoint
"an ad hoc post-legislative scrutiny committee to
examine the Extradition Act 2003 and Extradition Legislation,
to report by the end of the 2014-15 Session".
2. The suggestion for this inquiry came in a
letter to the Liaison Committee from Baroness Garden of Frognal
in which she said, "the question of extradition remains as
high up on the political agenda as ever".
3. The Committee was appointed on 12 June 2014
with the remit "to consider and report on the law and practice
relating to extradition, in particular the Extradition Act 2003".
Extradition: general principles
4. Extradition takes place when a person who
is accused or convicted of a criminal offence is returned from
one country to another to be tried, sentenced or to serve a term
of imprisonment. Extradition is a discrete legal process but it
operates within the context of other legal, political and international
5. There are some essential principles which
are fundamental to extradition law. It is worth making these explicit
as without them it is easy to misunderstand what the rationale
behind the law is and how it operates. These principles have guided
our thinking and this report should be read with them in mind.
6. The first principle is that extradition is
"a form of international cooperation in criminal matters,
based on comity (rather than any overarching obligation under
international law), intended to promote justice."
Because of its cooperative and bilateral nature, it is inherent
in extradition that each country accepts to a certain degree the
criminal justice systems of other countries. Each country has
different views of different crimes and how they ought to be prosecuted
7. This acceptance is also not absolute. For
example, extradition from the UK must be compliant with the European
Convention on Human Rights (ECHR). Also, extradition is a two-way
process; to refuse extradition to a country may lead to that country
not honouring an extradition request from the UK. Maintaining
good extradition relationships and honouring our international
obligations in this regard ensures that countries do not become
safe havens from justice, which would be the direct consequence
of not doing so.
8. Secondly, the purpose of extradition is to
return the Requested Person to the Issuing State either to stand
trial or, if already convicted, to serve a sentence. Extradition
proceedings are not therefore concerned with establishing innocence
or guiltthat is a matter for trial in the Issuing State.
Extradition is, as the Chief Magistrate's Office put it, "simply
a gate keeping mechanism."
Hence the dictum that it is better that 10 guilty persons go free
than that one innocent person suffers has no direct relevance
in this context since it is not the arena in which questions of
guilt or innocence are determined. It should nevertheless also
be recognised that extradition, involving as it does the removal
of people from the UK to jurisdictions with which they may have
little or no connection, may in some circumstances be considered
harsh and distressing in itself. Senior District Judge Riddle
spoke of the anticipated "horrors" of extradition leading
to people being "very anxious" and that the court saw
"significant incidents of selfharm."
However, though it may be harsh or unfamiliar, this does not mean
that extradition is necessarily unjust.
9. Finally, much of the evidence we received
focussed on the impact of the process on the Requested Person
and on the perspective of the Issuing State. The purpose of extradition
is to enable justice to be done in relation to crimes committed
overseas; therefore it must take into account "the impact
it has on victims
as a consequence of the crimes committed",
as well as the overall importance of supporting the rule of law.
The Extradition Act 2003
10. Until 2003, extradition was governed by the
Extradition Act 1989, itself a consolidation of three earlier
pieces of legislation.
The origins of the law relating to extradition go back hundreds
11. The Extradition Act 2003 ("the 2003
Act") acknowledged extradition as an important tool in dealing
with crime internationally; it emphasised that no one should be
able to escape justice simply by crossing a border. The 2003 Act
sought to provide a quick and effective framework for the extradition
of a Requested Person to the Issuing State, provided this does
not breach his or her fundamental human rights or one of the other
bars to extradition contained in the 2003 Act.
PART 1 AND PART 2 OF THE 2003 ACT
12. In 2002, the Council Framework Decision on
the European Arrest Warrant and the surrender procedures between
Member States (the "Framework Decision") was agreed.
This was part of the policy to create what is now referred to
as a single area of freedom, security and justice. It was implemented
into UK law by Part 1 of the 2003 Act. The Framework Decision's
stated aim was to abolish "the formal extradition procedure
among the Member States in respect of persons who are fleeing
from justice after having been finally sentenced" and to
speed up procedures "in respect of persons suspected of having
committed an offence."
The main features of the fast track procedure which was introduced
by the European Arrest Warrant (EAW) against the background of
the evolving EU competence in justice and home affairs were:
recognition: the EAW requires the acceptance of a foreign warrant
without inquiry into the facts of the case. There is no requirement
for the Issuing State to make a prima facie case;
judicial procedure: the executive is removed from the process.
Surrender can take place providing that an EAW is certified as
being properly made out by a recognised authority;
of the dual criminality requirement for 32 categories of offences
(as long as the offence is punishable with at least three years'
imprisonment in conviction cases);
· no exception
on the grounds of citizenship: though some countries would not
extradite their own nationals to other countries, they must do
so under the EAW; and
time limits within which surrender must take place.
13. Part 2 of the 2003 Act streamlined the judicial
mechanism for extradition to non-EAW countries with which the
UK has bilateral or multilateral extradition treaties (see Appendix
7). Some countries falling within Part 2 of the 2003 Act were
further designated as not being required to provide prima facie
evidence of the case against the Requested Person. Many, but not
all, of these countries are signatories of the European Convention
on Extradition (ECE)
(four others, Australia, Canada, New Zealand and the US, are also
14. There are many countries with which the UK
does not have any extradition arrangements. In some cases this
will be for diplomatic or political reasons (for example, the
UK has no extradition treaty with Taiwan, a country which the
UK does not formally recognise). In other casesfor example,
Japanthe reason is less clear. Where necessary, ad hoc
extradition arrangements can be brought into force. Under such
ad hoc arrangements, once the Home Secretary has recognised
a request from a territory with no standing arrangements, extradition
follows the same process as for a Part 2 request.
EXTRADITION PROCESS: AN OVERVIEW
15. In brief, the following process applies in
extradition request is received by the UK;
· in the
case of EAWs the request must be certified as being in order by
the designated authority. In England, Wales and Northern Ireland
this is the National Crime Agency (NCA). In Scotland it is the
Crown Office and Procurator Fiscal Service;
2 requests are certified by the Home Secretary;
a request has been certified, a warrant for the Requested Person's
arrest is issued; and
arrested the Requested Person is brought before the court for
an initial hearing. In England and Wales extradition cases are
heard at the Westminster Magistrates' Court. In Scotland they
are heard at the Sheriff Court in Edinburgh. In Northern Ireland
cases are heard by designated county courts or resident magistrates.
16. At the initial hearing the judge must:
the identity of the Requested Person;
the person about the procedures for consenting to be surrendered
to the Issuing State; and
a date for the extradition hearing if the requested person does
not consent to extradition.
17. At the extradition hearing the judge must
be satisfied that the offence for which the person is requested
constitutes an extraditable offence and that none of the bars
to extradition applies (see paragraph 19). If these conditions
are met, the court must order the extradition of the Requested
Person. If, however, any of the bars to extradition do apply,
the judge must order the person's discharge.
18. Appeals may be lodged with the High Court
and, if appropriate, the Supreme Court (see Chapter 7 for further
discussion of the right to appeal).
BARS TO EXTRADITION
19. The Act is drafted in such a way that a proper
extradition request will be honoured unless extradition is prevented
by one of the bars contained in the Act. These bars identify certain
fundamental limits which circumscribe extradition law in the UK.
Extradition may be barred on account of:
jeopardy (where a person has already been convicted for or acquitted
of the relevant offence);
considerations (prosecution, detention or punishment on account
of race, religion, nationality, gender, sexual orientation or
passage of time since the alleged offence;
age of the offender (where the offender was so young at the time
of the offence that he or she would not be criminally liable in
· a lack
of arrangements to prevent the Requested Person being prosecuted
by the Issuing State for a crime other than that for which they
were extradited (this is known as 'specialty');
extradition to the United Kingdom or transfer from the International
rights concerns, as defined by the ECHR (see Chapter 2);
(see Chapter 3);
(see Chapter 4);
and mental health considerations which would make extradition
unjust or oppressive;
being no guarantee of a re-trial for convictions where absence
from the trial was not deliberate; and
of process: although not a statutory bar, when the question arises,
under common law, both the Magistrates' Court and the High Court
have the power and duty to enquire into an abuse of their processes
in extradition proceedings.
AMENDMENTS TO THE 2003 ACT
20. The 2003 Act has been significantly amended
Police and Justice Act 2006 which introduced a forum bar that
was not brought into force (see Chapter 4);
Policing and Crime Act 2009 which, inter alia, introduced
alerts requesting the arrest of a person for extradition purposes
to be received via the second generation Schengen Information
System ("SIS II");
deferral of the extradition process in order to allow domestic
proceedings to be concluded or a UK prison sentence to be served;
it possible for a judge to facilitate the Requested Person's appearance
at court if remanded into custody by giving a live link direction
in Part 1 and 2 hearings (other than the substantive extradition
Crime and Courts Act 2013 which introduced the forum bar now in
force in England, Wales and Northern Ireland, and provided for
the transfer of the Home Secretary's responsibilities to discharge
extradition on grounds of human rights concerns (see Chapter 4
and 7); and
Anti-social Behaviour, Crime and Policing Act 2014 which made
various amendments to the 2003 Act including:
the proportionality bar (see Chapter 3);
for the temporary transfer of Requested People in Part 1 cases;
for leave requirements for appeals (see Chapter 7); and
a decision to prosecute to be made before an EAW can be executed
(see Chapter 9).
21. Since the 2003 Act came into force aspects
of it have been the subject of some controversy. There have, therefore,
already been a number of Parliamentary reports into its operation.
The House of Lords European Union Committee has published a number
of reports about the EAW and other EU police and criminal justice
measures. In June
2011, the Joint Committee on Human Rights published a report into
the human rights implications of the UK's extradition law.
In March 2012, the House of Commons Home Affairs Committee published
a report on the UK's extradition arrangements with the US.
In November 2014, this Committee published an interim report on
the UK's opt-in to the EAW which concluded in favour of remaining
within the EAW.
22. In addition, in 2010 the Government commissioned
a review by a former Lord Justice of Appeal, Sir Scott
Baker (see Box 1).
23. The controversy which the 2003 Act has attracted
is not unique to that Act. Its predecessors, the Extradition Acts
of 1870 and 1989, also gave rise to difficult cases (perhaps the
most high profile being the extradition of the former Head of
State of Chile, General Pinochet, to Spain).
Such controversy has not been restricted to the UK; many other
countries similarly grapple with the duties of comity between
nations in the interests of international justice and the protection
of their own citizens.Box
1: Sir Scott Baker's review of extradition
|In October 2010, the Government appointed a panel of three independent lawyers to review the UK's extradition arrangements. It was chaired by Sir Scott Baker, a former Lord Justice of Appeal. David Perry QC, a barrister with 6 King's Bench Walk, and Anand Doobay, a partner at Peters & Peters, were the other members of the panel. The report was presented to the Home Secretary on 30 September 2011 and published on 18 October 2011.
The review panel was asked to look at five areas of extradition law:
(1) the operation of the European Arrest Warrant;
(2) whether a forum bar to extradition should be brought into force;
(3) whether the US/UK extradition treaty was unbalanced;
(4) whether states requesting extradition should be required to provide prima facie evidence; and
(5) the breadth of the Home Secretary's discretion in an extradition case.
In its introduction, the review noted that "in the course of conducting our Review, it became apparent that some of the criticism directed at the Extradition Act 2003 was based on a misunderstanding of how the 2003 Act operates in practice
we were struck by the fact that out of the hundreds of cases that are dealt with by the courts each year, only a handful is relied upon as support for the contention that the existing law is defective."
The panel made a number of conclusions and recommendations. Among them were:
· the introduction of a proportionality test;
· that no additional measures were needed to prevent the use of EAWs as aids to investigation rather than prosecution;
· support for enabling legal representation of Requested Persons in both the Issuing and Executing EAW Member State;
· that a forum bar ought not to be introduced;
· that the UK/US extradition treaty did not operate in an unbalanced manner;
· that prima facie case requirements should not be re-introduced for fully designated Part 2 states;
· that the designation of Part 2 states should be reviewed;
· that the Home Secretary's discretion be removed so that human rights issues arising at the end of the extradition process under Part 2 of the Act should be dealt with by the courts;
· that legal aid should not be means tested; and
· in favour of the transferring of sentences to the UK where appropriate.
The Government published its response to the review in October 2012. It agreed with some of the recommendations (such as the introduction of a proportionality bar and removal of the Home Secretary's discretion) but not others (such as the means testing of legal aid and the introduction of a forum bar).
24. The Committee began its work in June 2014.
We held 16 public evidence sessions and heard from 43 witnesses.
We also received 93 pieces of written evidence. We are grateful
to all those who provided evidence. Members of the Committee also
visited Westminster Magistrates' Court to witness a number of
extradition hearings. We are grateful to the Senior District Judge,
his colleagues and staff for facilitating these useful visits.
We also thank Charlotte Powell, our Specialist Adviser, for her
advice and support.
25. Our inquiry has been evidence-led and this
report reflects the balance of the evidence we received, including
some issues beyond the scope of our initial Call for Evidence
which were raised during the inquiry.
26. One area on which we received only limited
evidence was the importance of extradition from the point of view
of those seeking justice for crimes committed against them. As
noted in paragraph 9, the needs of the victims and of the
wider community to have justice done are essential to the purpose
of extradition. For example, the Iranian and Kurdish Woman's Rights
Organisation told us that:
"extradition can not only have a significant
impact for victims and/or their families, but it can also be of
crucial importance for whole communities and for movements for
positive social change, such as the campaign to end 'honour' based
27. Our evidence, including some submissions
from those who had been extradited, gave details of a number of
extradition cases. Though particular cases may be used to illustrate
points made in evidence, we do not attempt to make judgments on
whether extradition was correct in particular cases, which would
be inappropriate for this Committee to seek to do.
28. In our Call for Evidence, published before
the independence referendum in Scotland, we asked for submissions
about extradition law and devolution. We received very little
evidence on this topic and therefore this report does not consider
the existing settlement or the possible implications of further
devolution or independence. However, we did take evidence from
witnesses on how the system currently works in Scotland and Northern
Ireland where the law is largely (though not completely) the same
as in England and Wales.
29. The report's structure covers two broad areas.
Chapters 2 to 8 address issues which arise in the course of extradition
proceedings (the bars to extradition, legal aid, appeal and so
forth). Chapters 9 to 11 discuss the two different categories
of extradition partners: the EAW countries governed by Part 1
of the Act and the Part 2 countries. Because of the controversy
which has surrounded some cases and the weight of the evidence
submitted to us a separate chapter on the UK's extradition relations
with the US is included. However, it should be clear that the
law and procedures which govern extradition to the US are exactly
the same as those that apply to other Part 2 countries not required
to provide a prime facie case.
30. It should be noted that extradition law in
the UK has been evolving in recent years: for example, by judgments
in relation to the human rights bar (see Chapter 2) and by the
introduction of proportionality and forum bars (see Chapters 3
and 4). Our report is concerned with the law as it is now, including
recent developments and their impact. These developments mean
that many of the cases referred to in evidence submitted to us
now need to be read in the light of subsequent changes which may
have mitigated previous criticisms.
1 HL Deb, 27 March 2014,
col 594 Back
Liaison Committee, Review of select committee activity and proposals for new committee activity
(1st Report, Session 2013-14, HL Paper 145) Back
HL Deb, 12 June 2014, cols 527-28
A Review of the United Kingdom's Extradition Arrangements ['the
Baker Review'], 18 October 2011, p 20
[accessed 3 March 2015] Back
Written evidence from the Office of the Chief Magistrate (EXL0043) Back
Q134 (Senior District Judge Riddle) Back
Written evidence from Summera Kauser (EXL0041) Back
Criminal Justice Act 1988, Part 1; Fugitive Offenders Act 1967;
and Extradition Act 1870 (as amended) Back
Between 1174 and 1794, England concluded five extradition treaties.
However, the modern law of extradition started to develop in the
nineteenth century, when the United Kingdom began to negotiate
extradition treaties with foreign states. Notable developments
included the Jay Treaty with the United States (1794), and treaties
with France and the USA in 1842 and 1843 respectively. Back
Council Framework Decision of 13 June 2002 on the European Arrest
Warrant and the surrender procedures between Member States, 2002/584/JHA Back
European Convention on Extradition: http://conventions.coe.int/Treaty/en/Treaties/Html/024.htm
[accessed 3 March 2015] Back
For example, the UK recently agreed to the extradition of Zain
Taj Dean to Taiwan to face manslaughter charges despite the UK
having no standing extradition arrangements with Taiwan. Back
For example, specialty arrangements mean that an Issuing State
cannot prosecute a person extradited on a drug dealing charge
for a murder committed before extradition, unless the Requested
Person had been given a reasonable opportunity to leave the Issuing
See R(Kashamu) v Governor of Brixton Prison (No 2) (2002)
QB 887 at 27-31 Back
European Union Committee, Counter-terrorism: the European Arrest Warrant
(6th Report, Session 2001-02, HL Paper 34); European Union Committee,
The European Arrest Warrant (16th Report, Session 2001-02,
HL Paper 89); European Union Committee, European Arrest Warrant-Recent Developments
(30th Report, Session 2005-06, HL Paper 156); European Union Committee,
EU police and criminal justice measures: The UK's 2014 opt-out decision
(13th Report, Session 2012-13, HL Paper 159); and European Union
Committee, Follow-up report on EU police and criminal justice measures: The UK's 2014 opt-out decision
(5th Report, Session 2013-14, HL Paper 69) Back
Joint Committee on Human Rights, The Human Rights Implications of UK Extradition Policy
(15th Report, Session 2010-12, HL Paper 156) Back
Home Affairs Committee, The US-UK Extradition Treaty (20th Report,
Session 2010-12, HC Paper 644) Back
Extradition Law Committee, The European Arrest Warrant Opt-in
(1st Report, Session 2014-15, HL Paper 63) Back
The Baker Review Back
R v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet
Ugarte (No. 1) (2000) 1 AC 61; R v Bow Street Metropolitan
Stipendiary Magistrate Ex p. Pinochet Ugarte (No. 2) (2000)
1 AC 119; R v Bow Street Metropolitan Stipendiary Magistrate
Ex p. Pinochet Ugarte (No. 3) (2000) 1 AC 147; and R v
SSHD ex p Kingdom of Belgium, 15 February 2000, CO/236/00. Back
For example, during the course of our inquiry a Canadian extradition
case concluded. This case involved the extradition of a Lebanese
born sociology lecturer at the University of Ottawa, Hassan Diab,
being extradited to France to face charges in relation to the
bombing of a Parisian synagogue in 1980. Mr Diab protested
his innocence and arguments were made about reliability of the
evidence provided by the French authorities. His case took 6 years
and was taken as far as the Canadian Supreme Court. Back
The Baker Review, pp 8-9 Back
Home Office, The Government Response to Sir Scott Baker's
Review of the United Kingdom's Extradition Arrangements, Cm
8458, October 2012 ['Government response to the Baker Review']:
[accessed 3 March 2015] Back
Written evidence from the Iranian and Kurdish Woman's Rights Organisation