Extradition : Christian Khan Solicitors, London UK.

Introduction

Extradition is the process whereby someone accused or convicted of an offence in a different state to the one in which he currently resides is sent to that state to stand trial or serve a sentence.

Extradition is governed by the Extradition Act 2003, which categorises states as either category 1 or category 2 territories.

Category 1 Territories

Category 1 territories are dealt with by Part 1 of the EA 2003. This part of the Act deals with extradition requests by other EU member states, usually under a European Arrest Warrant. The warrant must be received by SOCA, and the defendant must be given a copy of the warrant as soon as practicable after arrest.

After arrest, the defendant is brought before a judge for an initial hearing. The purpose of this hearing is to decide whether the person produced is the person in respect of whom the warrant was issued, and to set a date for the extradition hearing, which must be no later than 21 days after arrest.

At the extradition hearing, the judge must first decide whether the offence specified in the warrant is an extradition offence. An extradition offence is defined as conduct which would constitute an offence in the UK punishable with a minimum term of 12 months' imprisonment or another form of detention, and the penalty which may be imposed in the requesting territory.:

If the judge is satisfied that the offence is an extradition offence, he must decide whether there are any bars to extradition. These are:

The rule against double jeopardy
Extraneous considerations
The passage of time
The person's age
Hostage-taking considerations
Speciality
The person's extradition to the UK from another territory
The person's earlier extradition to the UK from a non-category 1 territory
The person's earlier transfer to the UK by the ICC

It is also open to the court to say that the offence is so trivial that extradition would be disproportionate.

If the defendant has been convicted of the extradition offence, the judge must consider the following questions in this order, only moving on to the next if each one is answered in the negative:

Was he convicted in his presence?
Did he deliberately absent himself from trial?
Would he be entitled to a retrial?

If all questions are answered in the negative, the judge must order the defendant's discharge.

If any of those questions are answered in the affirmative, the judge must consider whether extradition would be compatible with the defendant's rights under the ECHR. If so, an extradition order may be made. Once the order has been made, the defendant has 7 days to give notice of his intent to appeal. If no notice to appeal is given, extradition must be effected within 10 days of either:

The expiry of the period fro giving notice of appeal; or
If the judge and the authority issuing the warrant agree a later date, that later date.

Category 2 Territories

Category 2 territories are dealt with by Part 2 of the EA 2003. This part of the Act deals with extradition requests by non-EU states. Part 2 requires a state to make a request for extradition, usually via an authority which the Secretary of State believes has the function of making extradition requests or a diplomatic or consular representative. Category 2 territories are divided into territories which do not have to make an evidential case against the defendant, and those which do. The person sought must be either:

Accused of an offence and extradition is required for him to stand trial
Convicted of an offence and extradition is required for him to serve a sentence

At the extradition hearing, the judge will address the question of the defendant's identity, and check that the correct papers have been received and served on the defendant. Once satisfied of these matters, he must consider whether there are any bars to extradition. These are:

The rule against double jeopardy
Extraneous considerations
The passage of time
Hostage-taking considerations

If there are no bars to extradition and the defendant has not been convicted, the judge must consider whether the requesting territory is one which is required to make an evidential case. If it is not, or if it is and has made that case, the judge must move on to consider whether extradition is compatible with the defendant's rights under the ECHR.

If there are no bars to extradition and the defendant has been convicted, the judge must consider the following questions in this order, only moving on to the next if each one is answered in the negative:

Was he convicted in his presence?
Did he deliberately absent himself from trial?
Would he be entitled to a retrial?

If the last question is answered in the affirmative, the judge must consider whether an evidential case has been made. He must then consider whether extradition is compatible with the defendant's ECHR rights. If so satisfied, the judge must send the case to the Secretary of State, who will make the final decision as to whether the defendant is to be extradited, and has 2 months to do so. The judge must remand the defendant in custody or on bail pending this decision.

::Christian Khan Solicitors