The Extradition Process

Extradition is the return of a wanted criminal (the “fugitive”) from a country where (s)he is found, to the country where he or she is accused of, or has been convicted of, a criminal offence. It is quite different from deportation, which is concerned with the removal of an individual from a national territory.

There are effectively two extradition procedures operating at present. A new legal structure for extradition law was set up by the The Extradition Act 2003, which applies to certain European countries; Belgium, Denmark, Finland, Ireland, Portugal, Spain, Sweden and UK. Please see the separate information section on the European Arrest Warrant (EAW) for full details on how this new system operates.

Extradition requests to the UK concerning countries not included (non-EAW countries) in the above paragraph can broadly be summarised as below.

Extradition for non-EAW countries can be a very complex procedure and is governed by the Extradition Act 1989. The overall time taken to complete an extradition can vary considerably and is dependent on the complexity of the case and whether or not the fugitive contests the extradition.

Extradition requests made to the UK are dealt with by the City of Westminster Magistrates’ Court. Generally, the fugitive must be accused or convicted of an offence that is punishable in both states with a sentence of 12 months imprisonment or more (a concept called “dual criminality”).

Requests to the UK can be made in two ways:

When a request is made by a foreign state for the arrest of a fugitive, the arresting police force must obtain an arrest warrant from a District Judge at the City of Westminster Magistrates' Court in London. During the proceedings, the Home Secretary will have to sign an Authority to Proceed (ATP), and can do so only if (s)he is satisfied that the request papers are in order. Although it is usually difficult to challenge the Home Secretary’s decision at this stage of the proceedings, potential arguments that can be raised to defeat the process at this stage of the proceedings are that: -

Request for Provisional Arrest Warrant

Where a request is made for a provisional arrest, the fugitive will be arrested before the ATP is signed. (S)he will be brought before a District Judge who will set an initial period - usually between 40 & 60 days - for the receipt of the full order request and supporting documents. If these documents are not received within the time limits, the fugitive will normally be released.

Full Order Request

Where a full order request is made through diplomatic channels, the ATP is signed before the fugitive is arrested.

Commit to the Home Secretary’s Decision

At a Committal Hearing, the presiding District Judge considers the extradition request. (S)He will be concerned with certain criteria for this hearing, which will vary depending on the country requesting the fugitive. If (s)he is satisfied that all the required criteria is met, the court will commit the fugitive to await the Home Secretary's decision on whether to order the fugitive's return to the requesting state. The requesting state is usually represented at these hearings by the Crown Prosecution Service, who act as solicitors for the requesting state.

Appealing the Decision to Commit

The fugitive may appeal the court's decision to commit the fugitive to await the Home Secretary's decision on whether to order the fugitive's return to the requesting state.

A writ of "Habeas Corpus" (literally “Free the Body”) can be lodged with the Divisional Court within 15 days of the District Judge’s decision. During this period, if such an application is made and proceedings are still pending, the fugitive cannot be returned to the requesting state.

If the fugitive's application for habeas corpus is dismissed, (s)he may appeal to the House of Lords. It is also open to the requesting state to challenge a decision either to the Divisional Court or the House of Lords.
The Home Secretary’s Decision to Order Return

After all the judicial proceedings have been completed, the Home Secretary has two months to decide whether or not to surrender the fugitive. In the majority of cases, the Secretary of State must give notice to the fugitive that he is contemplating making an order for his return and give him the opportunity to make representations against it.

The case, including any representations, is then considered by the Secretary of State to decide whether to sign an order for the fugitive's return. Provided that he is satisfied that there are no statutory bars to the fugitive's extradition and there appears to be no other reason why extradition should not take place, (s)he will sign the Surrender Warrant.

Challenging the Home Secretary’s Decision to Order to Return

The fugitive may seek permission to judicially review the Home Secretary’s decision. The fugitive cannot be extradited whilst this process is continuing.

An up-to-date list of the countries which have extradition arrangements with the UK can be obtained from the Home Office.

Backing of Warrants

The Backing of Warrants scheme between the United Kingdom and the Republic of Ireland allows for direct police-to-police co-operation in the return of wanted fugitives. The warrant must be "backed" by a court in the requested state, but the scheme dispenses with the discretionary functions performed by ministers. Full provision for habeas corpus and appeals is retained, however. A similar arrangement provides for delivery of fugitives to the International Criminal Tribunals for Rwanda and former Yugoslavia.

Bail

Unlike ordinary criminal proceedings, the fugitive does not have a right to bail.