Extradition - To the UK

05 October 2022 minor update: 20 February 2023; minor changes: 28 July 2023|Legal Guidance

Introduction
- Confidentially
- Legacy European Arrest Warrants (EAWs)
Considerations and Process
Disclosure
After Extradition
Alternatives to Extradition

Introduction

This guidance provides an overview of how the CPS considers and makes extradition requests.

Extradition is the formal process for requesting the surrender of requested persons from one territory to another. Prosecutors can use extradition when they need to secure the surrender of a person from another country to England and Wales for the purpose of:

Prosecution;
Sentencing for an offence for which the person has already been convicted; or
Carrying out of a sentence that has already been imposed.

Part 3 of the Extradition Act 2003 (the Act) provides the domestic legal basis to make extradition requests to EU Member States (including Gibraltar) under the arrangements of Title VII of the EU-UK Trade and Cooperation Agreement (TCA).

Extradition requests made to non-EU countries are not covered by statute except for limited provisions.

The following tools are available to pursue the arrest and extradition of a requested person overseas:

Trade and Cooperation Agreement warrants (TaCA warrants)
Extradition requests
Interpol Wanted Diffusions
Interpol Red Notices

A combination of these tools may be appropriate depending on the circumstances of the case.

In certain circumstances it is also possible in urgent/high-risk cases to seek provisional arrest of an individual prior to a TaCA warrant or formal extradition request being submitted. Please refer to the guidance below in all cases.

Extradition is not the sole means of pursuing a requested person outside the UK. Prosecutors should consider all relevant factors and available options as part of the case strategy from the outset.

Confidentially

It is the policy of His Majesty’s Government and all operational partners to ‘neither confirm nor deny’ (NCND) the existence of a European Arrest Warrant (EAW), TaCA warrant, extradition request, provisional arrest request or Interpol Red Notice/Wanted Diffusion made by or received by the UK where the requested person sought has not been arrested.

NCND is long-established Government policy for certain law enforcement activities to ensure sensitive information is protected where confidentiality is necessary in the public interest and in the interests of justice. The policy exists to avoid any risks that confirming or denying the existence of a request could create. For example, disclosing whether an individual is subject of an extradition request could give notice to a wanted fugitive, who could subsequently evade justice by fleeing the relevant jurisdiction or staying in, or going to, a jurisdiction from which extradition would not be possible.

The application of NCND should be applied consistently wherever possible for both accusation and conviction cases.

Legacy European Arrest Warrants (EAWs)

For extradition to the UK from EU Member States, TaCA warrants are issued by the UK courts under Part 3 of the Extradition Act 2003. Following the UK’s exit from the EU on 31 January 2020, the UK retained use of the EAW throughout the Transition Period that ended at 11pm on 31 December 2020. Consequently, in some cases UK issued EAWs are still being circulated and processed within the EU.

Post-arrest EAWs

Where a requested person was arrested in an EU Member State on a UK issued EAW on or before 31 December 2020, extradition proceedings continue in that country as usual using the EAW process under Article 62(1)(b) of the Withdrawal Agreement.

Pre-arrest EAWs

Where a UK-issued EAW was issued before the end of the Transition Period and backed by an Interpol Wanted Diffusion to allow its circulation via Interpol, but the requested person was not arrested before the end of the Transition Period, there is no requirement for the EAW to be reissued under the new arrangements. The EAW will remain valid as a basis for arrest from 1 January 2021 in all EU Member States. However, for arrests made after 1 January 2021, extradition proceedings in the EU Member State will be conducted under the new TCA arrangements. The nationality bar will therefore apply in those EU Member States that have chosen to implement it.

If an EAW is no longer required, the JICC (Joint International Crime Centre) within the NCA must be informed promptly via email so that the Wanted Diffusion can be withdrawn from circulation and then an application made to the court that issued the EAW to have it withdrawn.

Considerations and Process

Accusation Cases

Prosecutors may apply for a TaCA warrant (and consideration as to whether to make a referral for an extradition request to be made to a non-EU country where appropriate) for a person in respect of offences which pass the Full Code Test.

If the reason for extradition is to seek the return of the requested person for the purpose of facing trial, prosecutors should ensure they are trial ready before making an application for an accusation TaCA warrant or extradition request.

Seeking extradition necessarily involves the deprivation of liberty of the requested person and their transfer to another country, as well as the use of considerable resources both on the part of the CPS and other criminal justice partners, it is important that applications for a TaCA warrant (and/or an extradition request) are only made in cases where it is clearly appropriate and proportionate. Including considering, for example:

the seriousness of the offence the likely penalty imposed if the person is found guilty of the alleged offence
the interests of the victims and/or
whether the offending, or another feature of the case, gives rise to concurrent jurisdiction issues. Further guidance on concurrent jurisdiction is set out below.

There may be exceptional cases where it is appropriate to consider a TaCA warrant based on a charging decision that only passed the Threshold Test. It is unlikely that such circumstances will arise except in urgent cases involving very serious offences or where there is a real risk to life.

Conviction Cases

Where a person has been convicted in absence, or has failed to answer bail following conviction, a TaCA warrant (and consideration as to whether to make a referral for an extradition request to be made to a non-EU country where appropriate) may be issued for the purpose of arrest and extradition so that the requested person is sentenced for the offence.

Where a person has already been sentenced for an offence but has yet to serve that sentence in full, a TaCA warrant may be issued (and consideration for a non-EU extradition request made) for the purpose of arrest and extradition so that the requested person serves the outstanding portion of the sentence. This may arise when:

a person is sentenced in absence following conviction;
a serving prisoner absconds;
a person is released from the custodial element of their sentence subject to licence, and the licence is subsequently revoked due to a breach of the licence conditions, leading to a recall to prison.

Where a person is sentenced in absence, the court is likely to have issued an arrest warrant prior to the sentencing hearing and this domestic warrant should be provided to the issuing judge when applying for the TaCA warrant. The domestic warrant (or certified copy) will also be required should an extradition request need to be made for a non-EU country.

If a serving prisoner absconds from their sentence they will be 'unlawfully at large' from the day they absconded, e.g. failed to return to prison following temporary release, or escaped from prison. Where a person is unlawfully at large they can be arrested without a warrant. However, if the person is to be charged with new offences e.g. escape from lawful custody, a domestic warrant will be needed for the new offences when applying for a TaCA warrant (or when making an extradition request). The new offences will also need to be added to the TaCA warrant/request. These cases will be referred to the CPS by law enforcement or His Majesty's Prison and Probation Service (HMPPS) and the process for mixed accusation/conviction warrant cases (as outlined below) should be followed.

Where an individual has been recalled on licence and is believed to have travelled abroad, CPS may receive a request from law enforcement or HMPPS for a TaCA warrant (or extradition request) to be pursued. The same considerations and processes apply to these cases as for other conviction cases however the following additional points apply when reviewing a request in relation to a person subject to recall on licence:

A person will be unlawfully at large from the day their licence was revoked and they were recalled to prison. They can be arrested without a warrant, and no domestic warrant is necessary when applying for a TaCA warrant (or extradition request).
The minimum sentence to be served by the requested person must be at least 4 months (for TaCA cases; minimum sentences may be longer for non-EU cases, check the relevant treaty). A fixed term recall for 28 days would be insufficient for a TaCA warrant to be issued. It will be important to ensure that HMPPS provide written confirmation of the term to be served to ensure that this minimum term is observed.

Further guidance on the interaction of extradition and recalls to custody can be found in the Joint National Protocol for the Recall Process for Offenders Subject to Licence.

In some conviction cases where the requested person is in the EU, it may be appropriate to consider whether a transfer of sentence may be appropriate.

Extradition processes can also be used to trigger transfer of sentence. For instance, where the requested person is located in an EU Member State, Article 601(1)(f) of the TCA indicates that if a conviction TaCA warrant has been issued for the purposes of execution of a custodial sentence or detention order and the requested person is staying in, or is a national or a resident of the executing State and that State undertakes to execute the sentence or detention order in accordance with its domestic law, that State will refuse extradition if the requested person has consented to the transfer of the sentence or detention order to their EU Member State.

Mixed Accusation/Conviction Cases

Separate accusation and conviction cases against the same defendant can be included in a single TaCA warrant and/or non-EU extradition request, but care needs to be taken to ensure that the different matters are clearly set out.

Dual Criminality

Dual criminality will need to be established in all cases when considering a TaCA warrant and/or extradition request, i.e. that there is an equivalent, if not identical, offence in the requested country’s domestic legislation.

Under the TCA, the UK does not rely upon the list of offences set out in Article 599(5) and instead requires that dual criminality is established in all cases. The executing Member State will therefore need to be able to establish dual criminality. A full description of the conduct should be included in the TaCA warrant to aid the foreign authority in the executing Member State.

Nationality Bars under the TCA

A nationality bar is the refusal of a state to extradite its ‘own’ nationals. For some states, this may also include residents. A nationality bar can take several forms, but will fall into three categories:

Absolute (usually a constitutional arrangement).
Discretionary (case by case basis).
Conditional (for example, based on an assurance the requested person will be returned home to serve any sentence if convicted).

In addition, as a matter of EU law (see Court of Justice of the EU judgments in C-398/19 and C-182/15) an EU citizen can only be extradited to a third country (such as the UK) after consultation with the EU Member State of which that citizen is a national. That Member State may then consider issuing an EAW and if issued will be given priority over the original third country extradition request (this is referred to as the Petruhhin process). In practice, it is unlikely that a superseding EAW will be issued and surrender to the UK under the TaCA warrant can proceed, but this possible outcome should be considered where the requested person is a national of an EU Member State who has an absolute bar on extraditing their own nationals. The UK has not asserted a nationality bar and will surrender UK nationals, therefore any conditional bars requiring reciprocity will not bar surrender.

Some States make surrender of their own nationals (or residents) subject to a condition that the individual is returned to the Member State to serve any custodial sentence. The UK Central Authority (UKCA) in the Home Office are responsible for issuing transfer of sentence undertakings under section 153C of the Extradition Act 2003.

Nationality Bars - Non-EU cases

Absolute or discretionary nationality bars may be in place for some countries outside the EU. The Extradition Unit should be contacted for further information and advice for any case identified where a potential nationality bar needs to be considered.

Other TCA considerations

Proportionality under the TCA

Execution of the TaCA warrant can be refused on the basis that surrender would be disproportionate, taking account of the rights of the requested person and the interests of victims. Factors to be considered by the EU Member State under Article 597, are:

seriousness of the conduct concerned;
likely penalty that would be imposed if convicted;
possibility of the issuing judicial authority taking measures that would be less coercive than the surrender of the person, particularly with a view to avoiding unnecessarily long periods of pre-trial detention.

Political Exception under the TCA

An EU Member State cannot refuse to execute a TaCA warrant on the grounds that it considers the offence(s) to which it relates as being political or inspired by political motives. 12 EU Member States (Belgium, Croatia, Cyprus, Czechia, Denmark, Finland, France, Italy, Poland, Portugal, Slovakia, Sweden) have made a declaration to limit the application of the exception to certain terrorism offences (including conspiracy or association – see Annex 45 of the TCA for full definition of qualifying offences). If the TaCA warrant relates to any other offences, the twelve EU Member States may refuse to execute a warrant on the grounds of political motivation.

Seizure of Property under the TCA

Property can be seized at the time the TaCA warrant is executed if specified in the TaCA warrant. However, items seized are unlikely to be handed over as evidence until the person is surrendered. The powers to search and seize at the time of executing the TaCA warrant vary in EU Member States. Alternatively, if such property is required as evidence, it can be sought using a MLA request.

Applying for a TaCA Warrant

A TaCA warrant can only be issued by an appropriate judge, although current practice is for applications to be made to a District Judge (Magistrates' Courts). An application can only be made by a constable or an appropriate person designated under the Extradition Act 2003. Crown Prosecutors are designated as appropriate persons.

The CPS does not make TaCA warrant applications on behalf of other UK prosecutors and must have conduct of domestic proceedings to make an application.

A TaCA warrant will be issued if:

there are reasonable grounds for believing that the person has committed an extradition offence; and
a domestic warrant has been issued in respect of the person.

Or if:

the person has been convicted of an extradition offence by a court in the UK;
extradition is sought for the purpose of being sentenced for the offence or serving a custodial sentence or another form of detention imposed in respect of the offence; and
either a domestic warrant has been issued in respect of the person or the person may be arrested without a warrant.

An extradition offence is defined in the Extradition Act, and includes the following scenarios in 'accusation' cases:

the conduct occurred in the UK, or if outside the UK, it constituted an extra-territorial offence; and
the conduct can be punished with at least 12 months’ imprisonment.

And in 'conviction' cases:

the conduct occurred in the UK, or if outside the UK, it constituted an extra-territorial offence; and
a sentence or other form of detention of at least four months was imposed.

The TaCA warrant takes the form of a standardised template.

The CPS prosecutor with conduct of the case has responsibility for drafting the TaCA warrant and making the application for a TaCA warrant to be issued.

Submitting the Application to the Court

When the authorisation to apply for a TaCA warrant is received, the reviewing lawyer should contact the local court and arrange for an early appointment in chambers, if necessary, with the appropriate judge.

A copy of the TaCA warrant should be emailed to the court in advance of any hearing to give the judge time to consider it before the hearing.

The Hearing (where appropriate)

A hearing may not always be required in some areas and circumstances, and applications can be considered electronically.

If a hearing is required, and assuming there have been no changes to the TaCA warrant since it was emailed to court, the advocate should take two copies of the TaCA warrant to court. One is handed to the District Judge for signature and stamping and is returned to the advocate. The other one is a spare copy for the advocate to use during the hearing. The District Judge normally already has their own copy printed from the email that was sent to the court. The advocate should have a copy of the domestic warrant for the District Judge, if required.

If there have been any changes to the TaCA warrant, the advocate should take three copies to court. One for the District Judge, one to be signed and one for reference. The final version of the TaCA warrant should be emailed to the JICC.

The advocate must be prepared for questions, although it is rare for a District Judge to look behind the decision to prosecute, or the legal analysis.

The court must stamp the issued TaCA warrant with the official court stamp (if the District Judge has not done this).

Transmitting and Circulating the TaCA Warrant

Upon receipt of the Wanted Diffusion, issued TaCA warrant and related documents from the Extradition Unit, the JICC will generally circulate the Wanted Diffusion to all EU Member States.

If located, law enforcement in the EU Member State will arrest the requested person on the TaCA warrant and the JICC will be notified. JICC will notify the reviewing lawyer and the officer in charge to arrange surrender to the UK.

Some EU Member States require the original of the TaCA warrant to be sent to them following the arrest of the requested persons. The JICC will advise if this is requested and the timescales for providing it.

Monitoring and Reviewing the TaCA Warrant

TaCA warrants, like general domestic cases, must be subject to ongoing review after the TaCA warrant is issued. If any changes occur which may impact on the evidential or public interest stages of the Full Code Test, the prosecutor must review whether the Full Code Test is still met for some, if not all, of the offences outlined in the TaCA warrant. This review must be recorded.

If the prosecutor concludes that the Full Code Test is no longer met for any of the offences in the TaCA warrant, the JICC must be notified in order to withdraw the Wanted Diffusion and the TaCA warrant must be withdrawn. Failure to do so risks individuals being detained unnecessarily. In the exceptional cases where the Threshold Test was applied when applying for the TaCA warrant, a further review must be completed and recorded when the requested person is arrested, and a court date is set for determination of the TaCA warrant. Where possible, the Full Code Test must be applied before the requested person is surrendered to the UK.

Requests for Further Information

Where a requested person has been arrested on a UK issued TaCA warrant and is facing extradition proceedings in an EU Member State, the authorities of that Member State may contact the UK with a request for further information (RFFI) to help them make a decision about the matters before the court. This would normally come in the form of a Request for Further Information (RFFI). Such a request indicates that the executing judicial authority has concluded that the information already communicated is insufficient to allow it to decide on surrender. It is in no way an indication of the decision of the court with regards to surrender.

RFFIs will usually be sent to the JICC who will then contact the reviewing lawyer. In some cases, RFFIs may be sent directly to the reviewing lawyer, or the executing authority may attempt to request information direct from the domestic court that issued the TaCA warrant. In all cases the RFFI must be responded to.

Upon receipt of the RFFI, the reviewing lawyer will need to consider:

what information has been requested; and
the timeframe given for a response.

Usually, the RFFI will be case specific. The reviewing lawyer should be able to deal with the request by answering the questions and providing more information about the case.

In some circumstances however, the RFFI may ask for information, or an assurance, that the reviewing lawyer cannot provide without engaging with other departments or agencies (such as Home Office or His Majesty’s Prison and Probation Service). Alternatively, the response may have a wider impact on UK extradition policy, e.g., where the standard of UK prisons is challenged or where a request for temporary surrender is being made.

Issues raised in an RFFI should not have any impact on the ongoing domestic review of a TaCA warrant case, or whether or not it meets the Full Code Test. An RFFI is not determinative of the issues raised or referred to within it. Where the issues raised refer to human rights issues or compliance with the TCA, it is for the executing Member State to determine in light of whatever information the reviewing lawyer provides.

RFFI responses should be clear and concise and should be drafted as formal letters on CPS letter headed paper, unless a response from another Government Department or agency is required. The response should be sent to the JICC for onward transmission to the relevant court or prosecutor or, if urgent, direct to the relevant court or prosecutor and copied to the JICC. In some cases it may be necessary to translate the response; the JICC will be able to advise where this is necessary.

Where RFFIs are requested from non-EU countries, these may need transmitting through UKCA at the Home Office as a supplementary bundle and any request for a formal assurance (for example, a temporary surrender or speciality guarantee), would need to be issued by the Home Office or other relevant government department. The UKCA would usually assist with assurances from other government departments, for example, from the Ministry of Justice (MoJ) when information is required on prisons.

Requests for Life Sentence Guarantees

Where a TaCA warrant has stated that the sentence or possible maximum sentence (in accusation cases), is or could be, a life sentence, Article 604 of the TCA states that an executing State may make execution of the warrant conditional on the giving a guarantee about review of a life sentence on request and where there is, or could be, a life sentence.

Letters of Undertaking

A Member State may also send a request for a Letter of Undertaking regarding conditional surrender or temporary surrender via the JICC, or directly to the CPS.

See below for further information on conditional surrender and temporary surrender letters of undertaking.

Conditional surrender

Conditional surrender is where, in accusation cases, the requested person is a national (or resident) of the EU Member State and surrender of the requested person may be conditional on the subsequent return, at the conclusion of proceedings, to serve any sentence that is imposed. This means that the person, if convicted, does not serve the sentence in England and Wales but in the EU Member State. In this context, "conclusion of proceedings" will usually include the conclusion of any confiscation proceedings relating to offences charged. The following EU Member States may require such an undertaking:

Bulgaria
Cyprus
Estonia
Hungary
Lithuania
Luxembourg
Netherlands
Portugal
Romania

These undertakings may only be given by the Home Office in accordance with section 153C of the Extradition Act 2003.

The CPS must maintain a role post-surrender in these cases to ensure action following trial for any transfer of sentence is actioned.

Temporary surrender

Temporary surrender is where the requested person is a serving prisoner in an EU Member State and their surrender can be granted temporarily for the purposes of trial. This will usually require an undertaking that the requested person will be remanded in custody during their stay in the UK, and that following conclusion of the proceedings in the UK, the requested person will be returned to the EU Member State. This undertaking may only be given by the Home Office in accordance with section 153A of the Extradition Act 2003.

Note the Extradition Act binds domestic courts to respect the Secretary of State's undertaking regarding custody, such that the court may only bail a person who is subject to such an undertaking if there 'are exceptional circumstances which justify it.' (see section 154(2)).

If the person is convicted, the CPS will need to inform the Prisoner Transfer team in the HMPPS as soon as possible to arrange the return of the requested person following trial in accordance with the undertaking. If the person is acquitted or receives a non-custodial sentence, the police will be responsible for returning the individual to the requested State.

The Prisoner Transfer team will contact the relevant overseas authority to arrange the return of the individual and inform the other jurisdiction of the outcome of the proceedings and any sentence imposed in the UK and, where appropriate, seek to transfer the UK sentence to the other jurisdiction.

Where the British sentence is not being transferred, arrangements should be made for the return of the prisoner at the end of their foreign sentence, via a conviction TaCA warrant. It should be that responsibility for the escort of the individual back to the UK for a second time on the conviction-based request rests with the police.

Surrender to the UK

If the requested person's extradition is ordered, the JICC will be notified and will liaise with relevant law enforcement agency responsible for collecting the person in the other EU state.

The requested person must be surrendered on an agreed date within the required period. The required period is: (a) 10 days starting with the day on which the executing Judicial Authority makes the final decision on execution of the TaCA warrant, or (b) if it is not possible for the requested person to be surrendered within the initial 10-day period due to circumstances beyond the control of the Member State(s) concerned or for serious humanitarian reasons, a later date must be agreed, with the surrender taking place within 10 days of this later date.

Should it become apparent the surrender cannot be completed within the required period, any application for extension of time should be made by the JICC, or other operational partners, to liaise with the appropriate executing authorities. The prosecutor should only have a consulting/advisory role if requested and must not draft the application for the extension of time in the name of the CPS or on behalf of other agencies.

Once extradited to the UK the requested person should be brought promptly before the court whose domestic warrant led to the issue of the TaCA warrant. Since criminal proceedings have already begun, no further arrest is necessary.

TaCA Warrant Refused

If a TaCA warrant is refused by an EU Member State, the case must be reviewed and a decision taken whether to maintain the TaCA warrant and Wanted Diffusion, re-issue the TaCA warrant, or withdraw it altogether. Just because one EU Member States has discharged the requested person on a warrant, does not necessarily mean that another EU Member State would also discharge the requested person if arrested in their jurisdiction.

Enforcement of a Sentence in the Executing State

In conviction cases, a surrender may be refused under the TCA where:

the requested person is staying in, or is a national, or a resident of the executing Member State; and
the Member State undertakes to execute the sentence.

If this is the ground for refusal, then pursuant to the Extradition Act, the domestic sentence is 'treated as served'. Sentences transferred abroad as a consequence of a TaCA warrant can be "adapted" or "converted" by the relevant foreign authority so that they accord with the executing Member State. On occasion this may mean a reduction in the term imposed by courts in England and Wales. Under the Council of Europe Convention on the Transfer of Sentenced Persons 1983 the executing State can adapt the duration of the sentence or detention within the conditions set out in Article 11 of the Convention.

Withdrawing a TaCA Warrant (or EAW)

A TaCA warrant can only be withdrawn by an 'appropriate judge', i.e. a District Judge of the Magistrates' Courts. If a TaCA warrant is to be withdrawn an application should be made to the court by the prosecutor. Law enforcement should also consider applying to withdraw any related domestic warrants.

If a decision is made to withdraw a TaCA warrant (or an existing EAW), the underlying domestic warrant should usually be discharged too, unless there is a specific reason for only withdrawing the TaCA warrant/EAW e.g. because it is now considered disproportionate to seek extradition.

The reviewing lawyer must take the following action if a decision is made to withdraw a TaCA warrant/EAW and the domestic warrant:

The JICC should be notified that a decision has been made to withdraw the TaCA warrant and requested to remove the Wanted Diffusion from circulation immediately. This removes the risk of the requested person being detained in the interim whilst the TaCA warrant (or legacy EAW) is withdrawn at court. That notification should be sent to JICC confirming the subject's name and date of birth and if available the JICC case ID in the subject line of the email.
An application must then be made to the court that issued the domestic arrest warrant to discharge it (if appropriate), pursuant to 7.2(12) Criminal Procedure Rules;
The TaCA warrant / legacy EAW should be formally withdrawn from the court where it was obtained, again pursuant to 7.2(12) Criminal Procedure Rules, and
Once the warrants have been withdrawn, confirmation of that withdrawal must be communicated to the JICC.

When notifying the NCA JICC of the withdrawal of the Wanted Diffusion, sufficient detail on the decision to withdraw and circumstances will also be required for the NCA to complete the withdrawal requirements for Interpol.

Extradition Requests for the Rest of the World (Non-EU)

Extradition requests made by the UK to non-EU Member States are not covered by statute except for limited provisions. These extradition requests are drafted by prosecutors and are issued and transmitted overseas by the Home Office under Royal Prerogative. These extradition requests can be made on the basis of:

a bilateral treaty between the UK and the country concerned;
the 1957 European Convention on Extradition ('ECE') (list of signatories);
any other multilateral convention to which the UK and the country concerned are both parties, for example, United Nations Convention against Corruption (UNCAC), United Nations Convention against Transnational Organized Crime (UNTOC);
An ad-hoc extradition request to a particular state seeking the return of a named individual for a specific offence or offences.

The Extradition Unit prepares extradition requests made by England and Wales to all territories outside the EU on behalf of the CCDs and CPS Areas. The extradition request, once prepared, is formally issued by the UK Central Authority (UKCA) at the Home Office and transmitted to the Requested State via diplomatic channels.

Any potential extradition request case will need be trial ready and have passed the Full Code Test (in accusation cases) or, exceptionally, have passed the Threshold Test (see above on issuing TaCA warrants).

If the person’s location is known to be in a specific territory outside the EU, an extradition request can be made according to the relevant international treaty or arrangement. It is usually possible in principle to make an extradition request to any but a handful of countries. However, extradition will only be possible in respect of an extradition offence. Although the definition will vary in accordance with the extradition scheme concerned, in broad terms it is a criminal offence, however defined in the requesting and requested states, which is punishable in both with at least 12 months’ imprisonment. In conviction cases a sentence of at least four months’ imprisonment must have been imposed for requests made under the European Convention on Extradition 1957. Requests made under the London Scheme on Extradition within the Commonwealth require that the offence/s must be punishable by at least two years’ imprisonment in both the requesting and requested country.

Rarely, in urgent cases, if a request is for the provisional arrest of an individual prior to an extradition request being made, whilst some countries can arrest on an Interpol Wanted Diffusion or Red Notice (where one has been issued), some will require a formal request for provisional arrest to be made via Interpol. If an arrest is made the full extradition request will need to be provided via diplomatic channels in accordance with the deadline given. The timeframes for a full request following a provisional arrest are set in the relevant extradition arrangement, however, the request will be required earlier to allow sufficient time for transmission through UKCA and to the requested country. The Extradition Unit may also need to arrange a full translation before the request can be sent to the UKCA.

The Extradition Unit will only authorise a Red Notice or Wanted Diffusion where it is necessary and proportionate. Red Notices are rarely used, and it will usually be appropriate to issue a Wanted Diffusion because they are targeted to specific countries and carry less risk. If a Red Notice is to be used, then a risk assessment is required.

Prosecutors within the CCDs are responsible for preparing extradition requests in their own cases and for forwarding them to the UK Central Authority (UKCA) at the Home Office.

Authorisation and quality assurance

Before any extradition referral is sent by a CCD or CPS Area to the Extradition Unit it must be quality assured and signed off by the CCD Head or DCCP for the Area. Submissions that are not made in accordance with this guidance will be returned by the Extradition Unit and not processed further. Written authorisation to refer a case to the Extradition Unit should be given by a Unit Head which should confirm that:

The offence(s) concerned meets the minimum sentencing requirements for that country;
the Full Code Test or Threshold Test has been met;
it is in the public interest to seek extradition;
there is sufficient information being provided to support the request;
a risk assessment has been completed where required.

After a referral has been made to the Extradition Unit

Once the extradition request has been prepared by the Extradition Unit, it is sent to the UK Central Authority (UKCA) at the Home Office and is formally submitted to the Requested State via diplomatic channels.

Urgent Cases

Exceptionally, in extremely urgent or high-risk cases (e.g. where the requested person is considered an immediate flight risk, immediate risk to the public or where there is only a short window of opportunity to arrest the person, for example, when they are transiting through the EU) provisional arrest may be sought. Provisional arrest can be sought by issuing a Wanted Diffusion (EU Member States), or a Red Notice or Provisional Arrest request, depending on country requirements. However, a TaCA warrant, or extradition request will need to be issued and follow in very short timeframes.

Disclosure

The three main disclosure issues that could arise in the context of extradition are;

Formal disclosure of unused material;
Duty of candour in respect of the content of the extradition request;
Disclosure of the extradition papers and material generated by the extradition process.

Formal Disclosure

In the context of extradition of persons to the UK, formal statutory disclosure duties will arise only where the requested person has left the UK's jurisdiction after charge in circumstances where they have either entered a 'Not Guilty' plea in the magistrates' court or has been sent for trial at the Crown Court and before conviction. The statutory duty of disclosure will not arise where the accused has absconded before charge or after conviction.

In a conviction case, although a statutory disclosure obligation ceases under section 7A CPIA, if material becomes available that may render the conviction unsafe then that material must be disclosed; see R (Nunn) v Chief Constable of Suffolk Police [2014] UKSC 37.

Even if there is no statutory duty to make disclosure, prosecutors should still consider whether the common law duty of disclosure applies in accordance with R v DPP ex parte Lee [1999] 2 All ER 737.

Early disclosure is referred to in Chapter 2 of the Disclosure Manual. Early disclosure will often benefit the prosecution as well as the defence by obviating fruitless lines of inquiry. It may also mean that the proceedings following the accused's extradition can progress more quickly.

Disclosure should usually only be made to the accused's UK legal representatives. Foreign lawyers acting for the accused in the extradition proceedings will not normally be qualified to understand or participate in this process.

Duty of Candour

In order to ensure that the description of the alleged conduct and the strength of the evidence set out in the extradition request is accurate and fair, prosecutors should seek to review unused material before a request for extradition is submitted, or as soon as possible thereafter.

Once extradition has been requested, the prosecutor should continue to review unused material and the prospects of securing a conviction. This is important in all cases, but particularly where there is a significant delay between the extradition request being made and extradition. Unused material that comes to light after an extradition request has been made should be reviewed as a matter of urgency and consideration given to whether the Full Code test is still met and whether it is appropriate to maintain/withdraw the request.

Where information that significantly alters the basis of the prosecution case comes to light after the request has been made, weakens the prosecution case to the point where there is no longer a realistic prospect of conviction, the TaCA warrant, or request should be withdrawn. If appropriate, the accused's legal representatives in the UK and any victims/witnesses associated with the case should also be notified.

Disclosure of Extradition Papers/Material Generated by the Extradition process

Before a non-EU extradition request can be made, the wanted person must be located. This process will inevitably generate material which may amount to relevant prosecution material. It is therefore essential that copies of all such material are passed to the disclosure officer for consideration as to whether it is relevant and should be scheduled. In urgent cases, a request for the accused's provisional arrest pending the submission of the full extradition documentation can be submitted through NCA or Interpol. This may also amount to relevant unused material and copies should be given to the disclosure officer for consideration.

An extradition request may be supported by a bundle of documentation complying with the requirements of the country concerned, the 'extradition bundle'. It is likely that the TaCA warrant, or extradition bundle will be disclosed to the requested person in the course of the extradition proceedings overseas. It will normally be necessary to schedule the TaCA warrant or extradition bundle as unused material because it will be relevant to demonstrating the basis upon which extradition was requested.

Once an extradition request has been submitted, or an individual is arrested under a TaCA warrant, the authorities in the foreign territory concerned may ask for further details ('further particulars') about the case. The prosecutor in the case should usually respond to these requests. Any such requests and responses should be passed to the disclosure officer for review and scheduling.

If extradition is ordered, arrangements will be made for the collection of the requested person by UK officers. Practices vary between countries as to whether, at the same time as the requested person is handed over into the custody of UK escort officers, (a) the TaCA warrant/extradition bundle (b) a copy of the order for extradition and/or (c) copies of any relevant judgments are also handed over. It will normally be necessary to schedule these documents as unused material because together they will show the basis upon which the foreign jurisdiction has agreed to the accused's extradition.

To ensure that this happens, the UK escort officers should be instructed to immediately obtain the documents set out above when they collect the fugitive. Upon return to the UK, the escort officers should immediately forward those documents to the disclosure officer for inclusion in the unused material schedules. If those documents are not returned with the requested person, the escort officers should immediately inform the prosecutor, and the prosecutor should contact the relevant authorities in the extraditing country to obtain them for review and scheduling.

After Extradition

Speciality

Following extradition, the requested person may only be dealt with for offences in respect of which they were extradited and cannot face proceedings for other offences that pre-date extradition (see sections 146 and 147 of the Extradition Act for Part 3 cases).

Speciality provisions apply in all cases. It is imperative in all accusation cases that the TaCA warrant/s or extradition request sets out all of the offences that the requested person will be prosecuted for. In conviction cases, the TaCA warrant, or extradition request should have referred to all offences the requested person has already been convicted of, in respect of which either the person has not yet been sentenced or has not yet completed a previously imposed sentence, including offences for which a suspended or recall sentence has been imposed.

When the requested person has been returned prosecutors must ensure offences included on the indictment were included in the TaCA warrant or extradition request.

Continuing Offence

Speciality does not prevent a prosecutor from adducing evidence of conduct which falls outside the relevant time period to prove the commission of an offence which falls within it (GW v Serious Fraud Office [2018] EWCA Crim 1155).

Investigations

Investigative/pre-charge dealings with a suspect also fall outside the scope of the specialty provisions. The specialty provisions were not intended to cover situations where domestic police wish to arrest and interview a suspect following his return. Specialty provisions are to protect a surrendered person against a country circumventing extradition, and so protect against prosecution, sentencing, or carrying out a sentence that should have been included on the original TaCA Warrant or extradition request. A pre-charge interview is not an action for which surrender could be sought.

If, following the arrest and interview of a suspect upon return, a decision to charge is made, it is at this stage that the specialty provisions are engaged and a request for consent (below) would need to be made.

Bail Act Offences

In R v Seddon [2009] EWCA Crim 483 the court held that pursuing a Bail Act offence which had not been included in the warrant (EAW) breached the specialty rule. Although a speciality waiver could be sought (see below), the court noted that the preferred approach was to include the reference to the Bail Act offence specifically as one of the extradition offences. The subsequent case of R v Jones (Royston) [2011] EWCA Crim 107, followed this approach in relation to the prosecution for a 'fail to surrender' which had not been included in the warrant (EAW). The same principle applies to any extradition request (non-EU request/TaCA warrant).

Exemptions to Speciality

Under section 146 of the Extradition Act, specialty does not preclude prosecution for;

An offence in respect of which the person waives his right to speciality;
An offence disclosed by the information provided to the Member State in the TaCA warrant;
An offence in respect of which consent to the person being dealt with is given on behalf of the other territory, in response to a request made by the appropriate judge;
If the person is given the opportunity to leave the UK but fails to do so within 45 days or has left but returned to the UK;
Certain minor matters including an offence which is not punishable with imprisonment or another form of detention, and an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal.

Requested Person Waives Speciality

Section 146(3)(f) of the Extradition Act enables a person to be dealt with for an offence in respect of which the person waives their right to the speciality protection.

Note that if a person is arrested under a TaCA warrant and consents to surrender, the person will also be asked if he agrees to waive his right to specialty. Subject to the law of the executing State this waiving of the specialty is irrevocable.

Offence Disclosed in the TaCA Warrant

Section 146(3)(b) Extradition Act provides that a person may be dealt with in the UK for an offence committed before extradition if the conduct was disclosed in the TaCA warrant when providing information regarding the extradition offences (for example 'lesser offences'). In R v Seddon the court referred to 'lesser included offences' holding that if an (EAW) were issued for murder, the returned person could be prosecuted for GBH or ABH. In Leymann and Pustovarov (C-388/08 PPU) [2008] the European Court of Justice held that a careful consideration of the facts of a case could reveal that the 'new' offence was in essence so closely related to the original offence specified in the (EAW) that it was not in fact an 'other' offence at all, and the consent process was not necessary. As a result, modifications concerning the time or place of the offence are allowed, in so far as:

They derive from evidence gathered in the course of the proceedings conducted in the issuing State concerning the conduct described in the arrest warrant;
They do not alter the nature of the offence;
They do not lead to grounds for refusal.

Consent of Executing State

Where it is necessary to prosecute an individual for offences not included in the TaCA warrant (or an EAW), and no other exemptions apply, under section 146(3)(c) of the Extradition Act an application can be made to the executing Member State to waive speciality. This application should be made using the TaCA warrant template to an appropriate judge and, if issued by the court, transmitted via the JICC. A decision on consent should be made within 30 days of receipt.

Where it is necessary to prosecute an individual for offences not included in a non-EU extradition request, a request for consent will need to be made via UKCA. The request will need to be supported by the standard documents which are normally required for an extradition request under the relevant agreement in place with that country.

The executing Member State may ask for evidence of the requested person's view of the application to waive speciality. This can most easily be obtained by listing the case before the trial court and having the issue of consent formally put to the person and the answers recorded.

If consent is given in a Part 3 case, then there is no need to continue as they will have waived speciality (see above). If consent is not given. then the court record can then be forwarded (with a translation, where required) via the JICC to the executing Member State.
In non-EU cases the court record may be required by the requested State whether the person has consented to further charges being brought or not.

Note it is advisable not to seek to remand the defendant on the new warrant until consent to prosecute is given (see Leymann and Pustovarov).

Given the Opportunity to Leave the UK

Section 146(4) of the Extradition Act outlines that if a person is given an opportunity to leave the UK, for example following an acquittal or a non-custodial sentence in respect of the offences for which surrender was ordered, then if the person fails to do so within the 'permitted period', as defined in the Extradition Act, or does so and returns within that period, the person may then be dealt with for other offences that predated his extradition.

Person Acquitted or Not Tried

Under section 153 of the Extradition Act if proceedings are not commenced within six months of the requested person's arrival in the UK or the defendant is discharged / acquitted, then the Secretary of State must arrange for the requested person's prompt return to the extraditing territory, provided that the requested person makes the necessary application within 3 months of either the 6 month period expiring, or the date of acquittal/discharge.

In this context, the commencement of the prosecution is:

the laying of the information or complaint; or
the preferring of the indictment (when there are no proceedings in the Magistrates' Court); or
the arrest and charge of the accused person; or
the application for a summons or warrant in respect of the offence.

Crediting Periods of Remand during Extradition Process

If the requested person is convicted following their extradition, prior to sentencing the domestic court will need to know the time spent in custody abroad during the extradition process.

Sections 240ZA and 243 of the Criminal Justice Act 2003 (as amended) and section 240 of the Sentencing Act 2020 contain the provisions which determine whether or not time spent in custody abroad during the extradition process will be credited when the person is sentenced for the offence for which he was extradited.

Section 49(3A) of the Prison Act 1952 provides that if a person who was unlawfully at large has been extradited to the UK on a TaCA warrant for the purpose of serving a sentence, the Secretary of State must exercise his power to count the time spent in custody awaiting extradition against the sentence. However, only time spent in custody solely awaiting extradition can be credited. If the requested person was also held prior to extradition for another reason, e.g., on a domestic charge, this will not be credited. In all other situations, in relation to TCA cases, time served in custody awaiting extradition must be counted against the UK sentence.

Alternatives to Extradition

Extradition requests are not the sole means of dealing with cases where a wanted person has left the UK. Prosecutors should have regard to the case strategy right from the outset and consider all available options.

Where extradition may not be possible or may not be the most suitable option, other options will need to be considered. These include but are not limited to:

Transfer of proceedings
Transfer of sentence
Trial in absence.

None of these options are straightforward. It is essential that ICLs, reviewing lawyers, and investigators assess the complexities and requirements at an early stage so that a carefully considered case strategy can be developed accordingly.

In some cases, where jurisdiction issues arise which span across two or more countries, a decision may need to be made on the most suitable location for the prosecution.

Transfer of Proceedings

For the purpose of this guidance "transfer of proceedings" means a formal request by the CPS via the UKCA to another jurisdiction to undertake the prosecution of a wanted person (or persons). Where the prosecutor is satisfied that the Full Code Test is met, a decision whether to ask another jurisdiction to undertake the prosecution of the case should be considered. There are occasions when this may be a practical solution, for example where both the wanted person(s) and the victim/witnesses reside in the same jurisdiction. However, there will also be many instances when this would be problematic, for example, where there are co-accused being tried in England & Wales or the victim/witness is vulnerable.

Transfer of Sentence

Transfer of sentence refers to a formal request to another country to undertake the enforcement of a custodial sentence imposed in the UK and can be used where the sentenced person is located in the country concerned.

Transfer of sentence should be considered before or alongside, issuing a TaCA warrant, Interpol Red Notice/Wanted Diffusion, or extradition request, particularly in cases where there is limited prospect of an extradition request being executed. It may also be considered subsequently if a wanted person is arrested overseas on the basis of any of these tools.

Different criteria and international legal basis for transfer of sentence apply depending on whether the sentence can be transferred under a Council of Europe instrument or a bilateral agreement. However, in all cases a decision to request transfer of sentence is issued by His Majesty’s Prison and Probation Service (HMPPS).

A request to transfer a sentence needs to be approached with caution as some countries, have very different sentencing regimes; for example, kidnapping that carries a maximum sentence of life imprisonment in England and Wales, may only carries up to five years' imprisonment in some countries.

A transfer of sentence to most EU countries (as well as other relevant signatories) can be facilitated without the requirement of the individual’s consent under the Additional Protocol to Council of Europe Convention on the Transfer of Sentenced Persons 1997(the “Protocol”). The Protocol has been ratified by 38 Council of Europe Member States (list of signatories) including all EU Member States except for Portugal and Slovakia. The consent of the wanted person is not required under the Additional Protocol.

Trial in absence

If extradition has been refused or may fall to be refused in an accusation case due to a nationality bar or the person cannot be located, in some cases, it may be appropriate to pursue a trial in absence. It is important to consider however that in England and Wales, where a requested person has been convicted and/or sentenced in their absence there is no automatic right to an appeal and in those circumstances not all jurisdictions will surrender requested persons. Also remember that nationality bar applies to both accusation and conviction warrants. Consideration will need to be given to the case strategy for the whole life of a case including the enforcement of any sentence handed down following conviction.

A trial in absence will be only be available where the court is satisfied that the defendant has waived the right to attend, and the trial will be fair despite the defendant's absence (Criminal Procedure Rule 25.2(b) and R v Jones [2002] UKHL). The judge will need to determine that it is in the interests of justice to proceed and appropriate warnings will need to have been given to the defendant earlier in the proceedings. In Crown Court proceedings, the defendant would need to have been arraigned.

Article 601(1)(i) TCA sets out the requirements for seeking surrender under a TaCA warrant in trial in absence cases. It is a good starting point to consider whether these factors have been established, so that if a trial in absence does go ahead any potential future extradition is not thwarted. The TCA required confirmation of the following:

That the requested person was summoned in person and informed of the scheduled date and place of the trial which resulted in the decision, or by other means received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that the person was aware of the date and place of the schedules trial; and the requested person was informed that they could be convicted in absence if they did not appear for trial; or
Being aware of the date and place of the schedules trial, the requested person has instructed a lawyer and was represented by that lawyer at the trial; or
After being served with notice of the conviction and the right to appeal, the requested person has expressly stated that they do not intend to appeal or did not appeal in the permitted time frame; or
That the requested person has not yet been personally served with the notice of conviction and time frame within which to appeal but will be so notified without delay following surrender.

Cases where the Jurisdiction to Prosecute is Shared

Where multiple countries may have jurisdiction, the decision where to prosecute should be considered by the prosecution and investigation authorities, often in consultation with counterparts in other jurisdictions as early as possible.

A state can exercise jurisdiction in several ways including the country where the offence occurred, the nationality of the offender, and the nationality of the victim. Where an offence occurs in a single territory it will usually be triable in the jurisdiction where the offence takes place unless there is a specific provision to establish jurisdiction.

When deciding forum prosecutors should take into account the Director's Guidelines and the Eurojust guidelines.

Joint Investigation Teams (JITs) and Eurojust Coordination Meetings

A Joint Investigation Team (JIT) is a team consisting of prosecutors and law enforcement authorities which is:

established by written agreement between the countries involved;
for a fixed period (usually 6-12 months with the power to extend by consent); and
for the purpose of carrying out specific criminal investigations in one or more of the participating countries.

JITS enable the direct gathering and exchange of information and evidence. Information and evidence collected in accordance with the legislation of the participating country in which it was obtained, can be shared on the basis of the JIT agreement without the need to use formal mutual legal assistance (MLA) tools.

A JIT can also be an effective vehicle to facilitate the transfer of proceedings particularly where there is an ongoing investigation.

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