Extradition - From the UK

• Introduction
• Extradition Proceedings
  • CPS Role in Extradition Proceedings
  • Prima Facie Requirement
  • Bars to Extradition
  • Human Rights
  • Ongoing Domestic Prosecution
  • Serving an Existing Sentence in the UK
  • Forum Bar
  • Role of the CPS Extradition Unit
• Bail
  • Breach of Bail
• Role of the Secretary of State
• Appeals
• Removal

Introduction

This guidance provides an overview of extradition proceedings where a requested person’s surrender is sought by another country from England & Wales and the CPS's role in these proceedings. Extradition is the formal process for requesting the surrender of requested persons from one territory to another for the following purposes:

• to be prosecuted;
• to be sentenced for an offence for which the person has already been convicted; or
• to carry out a sentence that has already been imposed.

Part 1 of the Extradition Act 2003 (“the Act”) provides the domestic legal basis for extradition from the UK to EU Member States (and Gibraltar) under the arrangements of Title VII of the EU-UK Trade and Cooperation Agreement (“the TCA”);

Although the UK left the EU on 31 January 2020 the European Arrest Warrant (EAW) remained available during the Transition Period (until 31 December 2020) and transition arrangements are in place for any arrest which took place on an EAW before 11pm on 31 December 2020, with the extradition process continuing to follow the EAW framework in those cases;

The TCA provides that any EAW issued and certified by the NCA before the end of the Transition Period but not yet executed (i.e., where no arrest has taken place) will constitute a valid warrant under the new arrangements.

Part 2 of the Act applies to extradition from the UK to the rest of the world.

The CPS conducts extradition proceedings on behalf of foreign authorities or States for requested persons arrested in England & Wales.

Bilateral and multilateral treaties and conventions offer an international basis for extradition cooperation between the UK and the country seeking extradition. Ad hoc arrangements can be entered into where no such treaty or other legal basis exists.

For guidance on extradition to the UK, see the ‘Guidance on Extradition to the UK’.

Extradition Proceedings

The National Crime Agency (NCA) is the central authority for the purpose of receiving Part 1 extradition requests from EU Member States and the UK Central Authority (UKCA) in the Home Office is the central authority for receiving Part 2 extradition requests from the rest of the world. 

The Extradition Unit, part of the Serious Economic, Organised Crime and International Directorate (SEOCID) in the CPS, conducts extradition proceedings on behalf of foreign authorities or States for requested persons arrested in England & Wales.

A requested person may be arrested in England & Wales on the basis of:

• A Part 1 warrant certified by the NCA under section 2 of the Act; i.e., either issued under the TCA (a “TaCA warrant”) or an EAW issued prior to the end of the transition period (31 December 2020); or
• A Part 1 provisional arrest request on behalf of an EU Member State under section 5 of the Act; or
• A Part 2 extradition request that has been certified by the Home Office and a warrant that has been issued by a domestic court under section 71 of the Act; or
• A Part 2 provisional request for extradition that has been received by domestic law enforcement and an arrest warrant that has been issued by a domestic court under section 73 of the Act; or
• A Part 2 provisional request for arrest without a warrant, under section 74A of the Act, where a certificate has been issued under section 74B.

Once arrested, the requested person must be brought to Westminster Magistrates' Court ‘as soon as practicable’, where all first instance extradition proceedings in England & Wales are conducted. At the ‘Initial Hearing’ when the requested person first appears or is brought before the appropriate judge, the judge must decide whether the person before the court is, on a balance of probabilities, the subject of the warrant and if so, inform the person of the contents of the warrant/request, provide information about consent and remand the person in custody or on bail.

If the requested person does not consent to extradition, the court will consider whether:

• the conduct described in the warrant amounts to an extradition offence;
• any of the statutory bars to extradition apply;
• there is prima facie evidence of guilt (if applicable, see below);
• extradition would be disproportionate or would be incompatible with the requested person's human rights.

In Part 1 cases the court will decide whether to discharge the case or to order extradition.

In Part 2 cases the court will decide whether to discharge the case or send the case to the Secretary of State for the Home Department to consider extradition.

Applications for leave to appeal against the decision of the Magistrates' Court, or the Secretary of State to extradite or to discharge a requested person, may be made to the High Court.

CPS Role in Extradition Proceedings

The CPS Extradition Unit has conduct of extradition proceedings at Westminster Magistrates’ Court, and the High Court, as well as the Supreme Court if an application to appeal is granted to certify a point of law of public importance. The CPS Extradition Unit provides advice to foreign authorities, to the extent considered appropriate, on any matters relating to the content and validity of extradition requests received via the NCA or Home Office and on the extradition proceedings or proposed extradition proceedings.

Prima Facie Requirement

A prima facie requirement does not apply to Part 1 cases. In some Part 2 cases the court must decide whether there would be enough admissible evidence to provide a case to answer and merit a trial if the offence had taken place in this jurisdiction (R (on the Application of Harkins) v Secretary of State for the Home Department [2007]). In making this determination, the judge must decide whether the prosecution case, taken at its highest, is sufficient for a jury to convict upon it (R v Galbraith [1981]).

The Act contains strict requirements which ensure that the extradition court is provided with sufficient detail of the alleged offences, convictions and proceedings in such cases. Countries that are signatories to the Council of Europe Convention on Extradition 1957 ('ECE'), as well as USA, Canada, Australia and New Zealand and a number of other territories (see full list at Extradition: processes and review - gov.uk) are exempt from the requirement to establish a prima facie case. These countries are nonetheless required to provide 'information' regarding the accusation or conviction, which is often presented in the form of an affidavit.

Bars to Extradition

In all extradition cases, the judge must consider whether any of the statutory bars to extradition apply. If the judge finds that any of the bars to extradition apply, the requested person's extradition cannot be ordered, and the judge must discharge them.

The statutory bars to extradition apply to all cases, even if there is no explicit clause in the relevant treaty.

Bars to extradition include the following:

• Double Jeopardy - where the person has already been prosecuted for the same offence.
• Absence of Prosecution Decision - where decisions have not yet been taken in the requesting country to charge and try the accused.
• Extraneous Considerations - where the request for extradition is improperly motivated by an ‘extraneous consideration’; namely the requested person’s race, religion, nationality, gender, sexual orientation, or political opinions; or whether, if extradited, the requested person might be prejudiced at trial, or punished/detained/restricted in their personal liberty, on account of one of these extraneous considerations.
• Health – whether a person’s physical or mental condition is such that it would be unjust or oppressive to extradite.
• Dual Criminality – whether the criminal conduct also constitutes an offence in the UK.
• Passage of Time - where extradition would be unjust or oppressive in light of the amount of time that has passed since the requested person is alleged to have committed the offence or since the person has been unlawfully at large following conviction.
• Conviction in absence – in cases where a person has been convicted in their absence, without their knowledge, and where they are not entitled to a retrial if returned.
• Forum – may apply to accusation cases where a substantial measure of the requested person’s relevant activity was performed in the UK; and the judge decides, having regard to several specified matters relating to the interests of justice, that the extradition should not take place (further guidance on forum below).
• Earlier Extradition from Territory / by the International Criminal Court ('ICC') - where the requested person was previously extradited to the UK from another country, or by the ICC, to serve a custodial sentence and no consent has been given by that country or by the ICC President for further onward extradition (note this consideration is for the judge under Part 1 and for the Secretary of State under Part 2).
• Age (Part 1 of the Act only) - where the requested person could not in law be found guilty of the offence due to their age.
• Hostage-taking Considerations (Part 2 of the Act only) – if the offence falls under section 1 of the Taking of Hostages Act 1982 and the requested person would be prejudiced at trial because of an inability to communicate with the appropriate protective (consular) authorities.

Human Rights

In all extradition cases, the judge must consider whether extradition would be compatible with the requested person's human rights. If the judge finds that extradition would not be compatible with the requested person's human rights, that person's extradition cannot be ordered, and the judge must discharge them. Common challenges include claims in respect of Article 8 of the European Convention on Human Rights (ECHR) regarding family or private life in the UK and prison conditions in the requesting State (Article 3 of the ECHR).

Prosecutors and judges apply the statutory provisions of the Act and not the terms of international treaties. The judge must consider whether extradition would be disproportionate in any given case, based upon the seriousness of the alleged conduct, the likely penalty should the requested person to be found guilty and the possibility of less coercive measures being taken by the foreign authority, including whether it is likely there would be unnecessarily lengthy periods of pre-trial detention.

Ongoing Domestic Prosecution

Occasionally a requested person will be charged with an offence in the UK, either before arrest on the extradition matter or at any point prior to extradition. In this scenario, the Act gives primacy to domestic proceedings. If this situation arises, extradition proceedings must be adjourned until the domestic matter is concluded.  

Where the requested person is a witness or a suspect in a domestic investigation, or is subject to confiscation proceedings, the extradition process cannot usually be delayed and will go ahead. There is usually no legal basis to postpone extradition proceedings unless the requested person has been charged with an offence in the UK (see below for persons serving a sentence in the UK).

Serving an Existing Sentence in the UK

If the requested person is serving a sentence in the UK, the court has the discretion to:

• Consider temporary surrender of the requested person to the requesting State
• Consider a temporary transfer of the requested person to the requesting State
• Adjourn extradition proceedings until that sentence has been served.

An order for temporary surrender is an extradition order which is made subject to the receipt of an undertaking as to the status of the requested person during the period of surrender; for example, an undertaking that the requested person will be remanded in custody whilst in the requesting state and will be returned to custody in the UK at the conclusion of the foreign proceedings or sentence. If the judge orders extradition, surrender cannot take place until the requesting State provides the necessary undertaking.

In Part 1 cases, the court also has a discretion to consider a temporary transfer request during extradition proceedings in order to advance criminal proceedings in the requesting State. Where such a request is agreed, the judge will make any necessary orders and directions to give effect to this and extradition proceedings will be adjourned if appropriate. This option, however, does not constitute disposal of the TaCA warrant and extradition proceedings will remain ongoing.

If a requested person is a foreign national offender, they will fall to be considered eligible for early release from their sentence for the purpose of immigration deportation / removal under the Early Removal Scheme (‘ERS’) where there is a determinate sentence or the Tariff Expired Removal Scheme (‘TERS’) where the individual is serving an indeterminate sentence. Extradition proceedings should not prevent the consideration of ERS or TERS at the point when it normally would be. If considered and authorised, deportation action is put on hold while extradition proceedings are taken forward. If extradition is ordered, the ERS or TERS authorisation provides the authority for an individual’s removal from prison, but it does not mean the sentence has been served. An individual would remain detained under the custodial sentence until such time they are removed under immigration or extradition powers.

Forum Bar

The underlying aim of the forum bar is to prevent extradition where the offences can be fairly and effectively tried in the UK, and it is not in the interests of justice that the requested person should be extradited (Love v USA [2018] EWHC 172 (Admin)). Forum may bar extradition, under s.19B or 83A of the Act, if the extradition judge decides:

• that a substantial measure of the requested person’s relevant activity was performed in the UK; and
• having regard to the specified matters relating to the interests of justice contained in s.19B(3) or 83A(3) of the Act (and only those matters), that the extradition should not take place.

In addition, in deciding whether or not the extradition would be in the interests of justice, the judge is also required to have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the requesting State concerned.

Whether a “substantial measure” of the requested person’s “relevant activity” occurred in the UK will usually be exclusively a question of fact, which will be determined by the court.  If this pre-condition is not satisfied, then the bar cannot operate in that case (Jaroslav Atraskevic v Prosecutor General's Office, Republic of Lithuania [2015] EWHC 131 (Admin)).

The Act contains no guidance about the weight to be given to the specified matters. The exercise the judge conducts will be fact specific and therefore the relative weight to be accorded to the specified matters will vary from case to case.  However, in practice the court may approach the specified matters and the question of weight as follows:

• Loss or Harm - Love v USA [2018] EWHC 172 (Admin) indicated that this will usually be "a very weighty factor". If the majority of the harm suffered as a result of the requested person’s conduct is in the UK then this will at least be treated as a factor of some weight in the balance against extradition (see Scott v United States of America [2018] EWHC 2021 (Admin)). If the harm from the conduct is felt exclusively in the requesting state/issuing authority, this is likely to be a weighty factor in favour of extradition.
• Interests of any victims - Victims of crime may have an interest in having the case tried according to their own local laws and procedures, and in any sentence being imposed following conviction reflecting the values of their own legal system, "but their interest in having a trial at all is the more important" (Love).
• Prosecutor’s belief - Where a relevant belief is stated, that will likely be a factor in favour of extradition. However, this is not decisive, and the weight given to that belief will depend on all the circumstances of the case (Scott).
• Whether evidence is or could be made available in the UK - This factor will require a comparison between the availability and admissibility of evidence in this country and in the requesting state.
• Delay - This also requires comparison between the investigation and proceedings in the UK and in the requesting state and can include the time it might take if no investigation has taken place in the UK.
• Desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction - In a case with more than one defendant it is desirable where practicable for prosecution to take place in a single trial. This is because this ensures all relevant evidence is available and promotes consistency of decision making.
• Connections with the UK - This will be an important factor against extradition, particularly where the requested person is a UK national with strong connections to the UK. A ‘connection’ is wider than simply being confined to nationality/citizenship and residence status and is similar to the notion of community ties when considering bail decisions. Without replicating the full scope of Article 8 of European Convention on Human Rights (ECHR), this can also include family ties, employment and studies, property, and duration. The concept can also cover health conditions if there is something particular about the nature of the condition connecting the requested person to treatment in the UK. However, note that in some cases the court has found this as a factor against extradition even where an argument on identical Article 8 or Article 3 grounds has already been rejected (see McDaid v United States of America [2020] EWHC 1527 (Admin)).

Domestic prosecutors are responsible for drafting a prosecutor’s belief and/or prosecutor’s certificate and for obtaining its authorisation by Directors of Legal Services Team. Additional guidance on the practice and procedure for domestic prosecutors is available within the Jurisdiction legal guidance under the heading ‘Forum Bar – Domestic Prosecutor Guidelines’.

Role of the CPS Extradition Unit

Where the requested person provides sufficient information for the court to determine that the forum bar is engaged, the court may ask the Extradition Unit to provide further information to assist in deciding whether a substantial measure of the relevant activity occurred within the UK.

The “relevant activity” of the requested person is the activity that is “material to the commission of the extradition offence and is alleged to have been performed by the requested person”. Therefore, the court must examine what the extradition offences consist of and see whether the activity that the requested person is alleged to have performed was, to a substantial measure, performed in the UK. This test will not be met where the UK could only assert extraterritorial jurisdiction over the conduct (Minh Quang Pham v United States of America [2014] EWHC 4167 (Admin)).

If the Extradition Unit is unable to assist the court with this, or with any other aspect of the specified matters, from the information contained in the extradition request or provided by a ‘domestic’ prosecutor (if engaged), further enquiries may be made of the requesting state or a relevant domestic prosecutor.

If no domestic prosecutor is or has been seized of the case, the Extradition Unit must decide whether the case should be referred to a domestic prosecutor for consideration of a UK prosecution and/or expression of a ‘prosecutor’s belief’. A referral to a domestic prosecutor must only be made where the Extradition Unit believes:

• there is sufficient information to express a belief that will have likely weight in the extradition proceedings; and,
• there is a particular feature of the case, such as the location of the loss or harm or connections to the UK which could lead to a conclusion the UK is the most appropriate jurisdiction.

If these criteria are not met, then no referral should be made, and a prosecutor’s belief need not be sought. If it is considered that a referral is required, subject to authorisation from the Head of Extradition, the relevant domestic prosecutor should be identified.

Bail

Bail in extradition cases is covered by the Bail Act 1976 and Part 14 of the Practice Direction. Where the requested person is wanted to face an accusation, the starting point is that there is a 'presumption in favour' of bail. In conviction cases, where the requested person has been convicted of the offences which are the subject of the request, there is no presumption in favour of bail.

In deciding to grant bail in extradition cases, the court may consider whether to impose stringent bail conditions. These may typically include, but are not confined to:

• Provision of a security/surety;
• Surrender/retention of travel documents;
• Prohibition against applying for travel documents;
• Geographical restrictions, e.g., restriction from being near travel ports or airports;
• An electronically tagged curfew requirement;
• Regular reporting to a local police station.

Persons refused bail at the magistrates' court may apply for bail to the High Court, but this can only be done after the magistrates' court has refused bail twice.

It is also possible to appeal against the granting of bail in extradition cases.

Breach of Bail

Although extradition proceedings are dealt with exclusively at Westminster Magistrates' Court, where a person is brought to another court for a breach of bail conditions, there is jurisdiction to deal with the breach in the usual way. The usual time limits apply, so the breach must be dealt with promptly in the local court, and the Extradition Unit must be notified of the outcome of the bail hearing.

Role of the Secretary of State

In Part 2 cases, should the Judge decide to send the case to the Secretary of State (i.e. the Home Secretary) for a decision on whether to order extradition, the Secretary of State must consider whether any of the statutory provisions apply. Extradition can only be prohibited if:

• the person could face the death penalty (unless the Secretary of State gets adequate written assurance that the death penalty will not be imposed or, if imposed, will not be carried out);
• there are no speciality arrangements with the requesting country – ‘speciality’ requires that the person must be dealt with in the requesting state only for the offences for which they have been extradited (except in certain limited circumstances);
• the person has already been extradited to the UK from a third state or has been transferred from the International Criminal Court, and consent for onward extradition has not been provided from that third state or that Court.

If these provisions do not apply, the Secretary of State must order extradition. A decision must be made a within 2 months of the day the case is sent. See Home Office guidance for more information on the Secretary of State’s role.

Appeals

Applications for leave to appeal against the decision of the Magistrates' Court or the Secretary of State to extradite or to discharge a requested person may be made to the High Court. Notice of application for leave to appeal must be sought within 7 days of extradition being ordered by the judge or 14 days of extradition being ordered by the Secretary of State (starting with the day on which the order is made). The same time limits apply where discharge has been ordered by the judge or Secretary of State.

In Part 2 cases, if an appeal by the requested person is against both the decision of the judge to send the case to the Secretary of State and the decision of the Secretary of State to order extradition, the appeals will heard at the same time, assuming permission is granted.

Where an appeal is dismissed, the requested person, or requesting State, can apply for leave to appeal to the Supreme Court against the High Court’s decision. Notice of application for leave to appeal must be given within 14 days of the High Court decision. An appeal can only be granted if the High Court has certified the case involves a point of law of general public importance.

Removal

When extradition has been ordered by Westminster Magistrates' Court under Part 1 of the Act the requested person must be extradited:

• within 10 days of the expiration of the 7-day notice period for applying for permission to appeal; or
• a later date agreed by the judge and the foreign authority.

Where the requested person makes an unsuccessful appeal, he must be extradited within 10 days of:

• the High Court's decision becoming final; or
• any later date agreed between the court and the foreign authority.

Where there may be reasonable cause for delay to a surrender after the required period, an extension to the time limit may be sought from the court. If reasonable cause is not established and an extension is refused, the requested person can apply for their case to be discharged.

Where extradition has been ordered by the Secretary of State under Part 2 of the Act, the requested person must be extradited within 28 days of the day on which the extradition order was made (unless notice of appeal has been given within the first 14 days).  

Where the requested person makes an unsuccessful appeal, extradition must take place within 28 days from the appeal decision becoming final.