extradition

Joseph Kotrie-Monson speaks to BBC Radio on the extradition to the US on terrorism offences

At Mary Monson Solicitors, our specialist lawyers have significant experience in this area, and appear regularly at Westminster Magistrates’ Court, the main extradition court for England and Wales. As a firm, we have international links, and have solicitors within the firm fluent in Russian, French, Spanish, Portuguese, Bengali, Urdu, Punjabi, Czech, Slovak, and ten or more other world languages. We regularly also act in criminal cases involving Holland.

We have included a basic guide to the process below, and also a brief case study of a case which our solicitors have recently defended.

Case Study

Any extradition solicitor can claim to have expertise in different types of extradition case. We have included here a case study to give some idea of how we prepare our cases.

Arrested under a European Arrest Warrant

Our client had been convicted of theft offences in Poland, and had been arrested under a European Arrest Warrant. European Arrest Warrant cases are often difficult to fight, as the strength of the case against the detained person is irrelevant. However, because the police delayed in bringing our client to court within a reasonable time, as the law says must happen, we argued in court that the extradition from the UK could not take place.

However, two years later, the Polish government reissued the request for extradition. After a one year battle which finally ended at the High Court, the judge accepted the human rights arguments put forward and our client was not extradited. Result: client freed by court.

Extradition from the UK – The Law

All extradition in the UK is covered by the Extradition Act 2003. It makes a distinction between extradition to countries which are part of the European Arrest Warrant system, and to other countries which have separate extradition treaties, such as the US (see Part 2, below).

Part 1 – European Arrest Warrant Countries

All European countries which are members of the European Union can issue a European Arrest Warrant (EAW), which makes the process of extradition easier for the country asking for the person to be extradited because no evidence of the alleged offence has to be provided. An EAW can be issued where a person is accused of a offence or where he or she has been convicted of an offence but hasn’t served the sentence yet.

extradition from ukThe EAW has to provide details of the identity of the person whose extradition is requested, and details of the offence(s). It can only be issued for offences of a certain level of seriousness. For cases where the person is only accused, the offence has to be one which carries a maximum sentence of at least 1 year in prison in the EU state. For cases where the person has been convicted and sentenced, the sentence has to be one of at least 4 months in prison in the EU state.

Reasons a court may not extradite

There are several bars to someone being extradited. ‘Bars’ are reasons for a court to refuse to extradite the person.

These ‘bars’ include:

Hostage taking considerations

Where the client has already been extradited from another country, consent may be needed before extradition from the UK can take place.

Extraneous considerations – this means when the proceedings in the foreign state are actually a cover for an ulterior motive, or where the person will be disadvantaged during the foreign proceedings because of that same ulterior motive, for example, racial or political victimisation.

Further aspects a judge must consider

Conviction in absence

Although putting someone on trial in their absence is quite rare in the UK, it happens more often elsewhere in the EU. This means that EAWs are sometimes issued following a person being convicted and sentenced without having been present at their trial. In those cases, the person can’t be extradited unless they will have the right to a retrial in the foreign state.

Compatibility with the Human Rights Act 1998

extradition solicitorsThis means that extraditing the person must not be disproportionately in breach of his or her human rights as laid out in the European Convention on Human Rights. These rights include the right to a fair trial, protection from torture or inhuman treatment, the right to respect for family life etc.

The Dual Criminality Test

The offence for which the person is extradited must be an offence in the UK as well as in the foreign state, unless it is one of a list of 32 specified serious offences which are considered to be crimes in all countries (for example, murder, drug trafficking etc.). If the offence is on that list, the ‘seriousness’ test is increased to a maximum sentence of at least 3 years in prison (where the person is merely accused) or an actual sentence of at least 12 months in prison (where the person has been convicted and sentenced).

Appeals against extradition from the UK

The extradition solicitors for either side in these cases can appeal the magistrates’ court’s decision to the High Court. A final appeal can go to the Supreme Court but only in cases where there is a ‘point of law of general public importance’. This usually means where the legal issue is one that could change the way the law works for other cases in the future.

Extradition Act Part 2 – Treaty Countries

There are two further categories of case. Each requires the agreement of both the court and the UK’s Home Secretary. For both categories the following must be proved:

The fact that either an arrest warrant has been issued or that the person has been convicted in the foreign state

extradition solicitorsThe first category includes European countries which aren’t part of the European Arrest Warrant system (for example Norway and Croatia), and also many non-European countries including Canada, the US, Australia, New Zealand, South Africa and Russia. These countries do not have to show the strength of the case against the person, but must provide details of the case in the foreign country.

In the second category, which includes extradition treaty countries from farther away in areas such as Africa, Asia, South and Central America, and the Caribbean, the judge has to be satisfied that there is a prima facie case. This means that the case is strong enough to require an explanation from the defendant or, put another way, that a court would be entitled to reach a guilty verdict on the prosecution’s evidence if no defence were put forward. Extradition cases involving this category of country (which includes, for example, Jamaica, Morocco, Egypt, Nigeria, India, Pakistan, and Thailand) can be fought on the strength of the evidence. The UK court must be persuaded that the case against the defendant has some real basis before extraditing.

Of course, the usual bars to someone being extradited apply, including the rule against double jeopardy, and extraneous concerns. Human rights issues, and the so-called ‘dual criminality test’ may also prevent extradition from the UK.

The Home Secretary’s decision

If the court has authorised extradition, in cases where there is no European Arrest Warrant, the Home Secretary must consider whether to allow extradition. He or she must consider whether the death penalty may be given in the foreign country, and if so must refuse extradition unless the country gives reassurances that the death penalty will not be used. The Home Secretary will also refuse extradition unless he or she is sure that there are rules in the foreign country to stop the person from being tried for any extra offences which weren’t included within the extradition request.

Bail

There is a presumption in favour of bail in extradition proceedings where there has not yet been a conviction in the foreign country. The foreign country (usually represented by the CPS), will often try to prevent this, by making objections in court on the basis of the likelihood that the person will not attend. Because there is often an accusation that the person has ‘escaped justice’ in the original country, this may be quite persuasive to a judge. Because of this, evidence of ties to the UK and their family life here can be particularly important. The court will also often require security (a cash deposit paid into court) before considering allowing bail.

Generally, the same rules for bail as in criminal cases apply. Read more information on bail here.

In cases where the person has already been convicted in the foreign state, bail may be more difficult to obtain.

Appeals made by Extradition Solicitors to the High Court and Supreme Court

If a person is ordered to be extradited at the magistrates court stage, that person has a right of appeal to the High Court. In some cases, the person may have a right of appeal to the Supreme Court, but permission, called ‘leave to appeal’, is required.