Extradition

The Extradition Regime

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).

This provides two relevant ‘types’ of warrant that can be sought:

• Trade and Co-Operation Warrants (TaCA);
• Extradition.

General Principles

There is a general principle that where an individual is sought for trial or punishment on an extraditable offence. An extraditable offence is on which is punishable by a period of imprisonment of one year or more. This would include assisting an offence of this nature.

There are various technicalities that would need to be complied with if an application for extradition were to be pursued.

An Application to Extradite

In respect of the practicalities, as a result of UK legislation, the request for extradition would be governed by the Extradition Act 2003.

There are a number of stages.

In terms of a TaCA warrant, 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.

Extradition

If the extradition is certified, as discussed earlier in this advice, then the decision will then be made by a Judge whether or not to issue an arrest warrant. The Judge may issue the warrant where it appears:

• The offence in respect of which extradition is requested is an extradition offence; and
• Where required, there is evidence falling within s 71 (3).
• The evidence required is set out in Section 71 (3):

In accusation cases, evidence that would justify the issue of a warrant for the arrest of a person accused of the offence within the Judge’s jurisdiction, if the person whose extradition is requested is accused of the commission of the offence.

In conviction cases, evidence that would justify the issue of a warrant for the arrest of a person unlawfully at large after conviction of the offence within the Judge’s jurisdiction.

The actual level of evidence was discussed in R v Weil [1882] 9 QB 701 where it was said that “very little evidence will do”. The impact of more recent legislation has confirmed that for matters involving the United States, the word “evidence” should be read as meaning “information”.

Following arrest, there are then discussions surrounding bail and the appropriate directions that are required. As with other stages, these vary dependent upon the Category of state. The main preliminary issues are to provide the information that is required pursuant to statute.

The Meaning of Permitted Person

It is important to challenge the meaning of permitted person under the Extradition Act 2003.

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.