What is extradition and how can you appeal it?

Extradition takes place when someone who is accused or has been convicted of a criminal offence is returned from one country to another to be tried, to receive a sentence or to serve a sentence of imprisonment.

Extradition is a form of international cooperation on matters of criminal justice and relies on each country accepting the decisions of the courts of law in other countries. Each country has different views of different crimes and how they should be prosecuted and punished.

A court dealing with an extradition request has to balance the need to protect the rights of the requested person with the public interest in maintaining good extradition relationships with other countries by assisting them to bring individuals who may have committed crimes to justice.

Extradition proceedings are not concerned with establishing whether a person is guilty of the crime for which their return is being sought. That is a matter to be decided once the requested person has been returned to the country issuing the request.

In the UK, extradition is governed according to what sort of treaty is in place between the UK and the issuing state. Most extraditions to and from the UK are between the UK and other member states of the European Union under the a procedure known as the European Arrest Warrant ("EAW"), which this article will address.

The EAW works on the principle of mutual recognition: judges are required to take the warrant at face value without enquiring into the facts set out in the warrant, or requiring the issuing state to prove it has a case. EU countries are furthermore not allowed to refuse to extradite their own citizens under the EAW.

Procedures under the EAW usually follow the following sequence:

• an extradition request is received by the UK;
• the National Crime Agency will then check that the request meets the formal requirements and issue a certificate;
• once the request is certified, a warrant is issued for the requested person's to be arrested;
• on arrest, the requested person is brought for an initial hearing before a district judge at City of Westminster Magistrates Court in London, the court which deals with all extradition cases in England and Wales
• at the initial hearing, the judge will:
  • confirm the identity of the requested person;
  • inform them of the procedure to be followed for consenting to extradition;
  • fix a date for an extradition hearing if they do not consent to extradition;

Many people facing extradition will consent to their extradition. If they are sought to be brought to trial, they may wish to return voluntarily to fight the case. If they are sought to be sentenced or to serve a prison sentence, they may prefer to go back and "do their time" rather than remain as a fugitive in the UK. Once consent is given and extradition is ordered, the requested person will normally be extradited within 10 days.

If the requested person does not consent, the extradition hearing should normally be listed within 21 days of their arrest.

At the extradition hearing, the Judge will have to be satisfied firstly that the allegation contained in the warrant amounts to an extraditable offence and secondly that no statutory "bars to extradition" do not apply.

An extraditable offence, in all but a few cases, is one that would also amount to a criminal offence had it happened in the UK. The offence must also carry a punishment of at least 12 months imprisonment in cases where the requested person is sought for trial, or at least 4 months where a sentence has already been passed.

The statutory bars which apply to extradition are:

• the rule against trying a defendant twice for the same crime ("double jeopardy");
• the absence of a charge or decision to prosecute by authorities in the issuing state;
• improper motives for prosecution, such as prosecution or punishment on the grounds of race, religion, sexual orientation or political opinions ("extraneous considerations");
• the passage of time since the alleged offence;
• the offender having been under the age of criminal responsibility in the UK at the time the offence is said to have been committed;
• an absence of guarantees that the requested person will not be prosecuted for offences other than the ones which appear in the warrant upon their return ("specialty");
• physical and mental health considerations which would make extradition oppressive or unjust;
• where it would be disproportionate to order the extradition taking into account the effect on the requested person and seriousness of the offence ("proportionality");
• where it would be more appropriate for the requested person to be prosecuted in the UK instead ("forum considerations");
• where the requested person was convicted at a trial at which they were not present, the absence of a guarantee of a re-trial;
• concerns that to order the extradition would cause a breach of the requested person's rights under the European Convention on Human Rights ("ECHR") ("human rights grounds")

Human Rights grounds for challenging extradition

Human rights are argued in almost every extradition case that goes to a full hearing. Courts will begin with the presumption that fellow Member States of the European Union will respect the human rights of the requested person. The requesting person will then have the opportunity to present evidence to show that their human rights are at risk of being breached should they return to the issuing state.

The articles of the ECHR most often invoked in extradition cases are:

• Article 3 on the prohibition of torture, or inhuman or degrading treatment.
• Article 5 on the right to liberty and security.
• Article 6 on the right to a fair trial.
• Article 8 on the right to respect for private and family life.
• Article 14 on the prohibition of discrimination.

Torture and inhuman or degrading treatment or punishment

There is an unqualified human right not to be subjected to torture and inhuman or degrading treatment or punishment, and it is a breach of a requested person's Article 3 rights to return them to a country where they face a real risk or danger of such treatment.

Whilst Article 3 is a complete bar to extradition, it is difficult to argue and succeeds relatively rarely. Substantial grounds have to be shown for believing that the person concerned faces a real risk of exposure to inhuman or degrading treatment or punishment. In the absence of direct evidence of a real risk, the requested person will have to show that there is a consensus amongst the international community that such a risk exists.

For example, extradition requests by Romania have been repeatedly challenged on the grounds that there is a real risk of a breach of requested persons' Article 3 rights caused by the appalling conditions in Romanian prisons. Reports of cases at the European Court of Human Rights are replete with descriptions of overcrowded cells, inadequate sanitary facilities, a lack of hygiene, poor-quality food, dilapidated equipment and the presence of rats and insects in the cells. The High Court in London has repeatedly overruled these challenges by holding that the "assurances" provided by the Romanian government that the Article 3 rights of individual requested person will be respected are sufficient.

Assurances

In many cases where the court finds a real risk that a requested person's human rights might be breached in the requesting country if they were extradited, the issuing state will offer an assurance. For example, in a case where potential breaches of Article 3 are raised because of inadequate prison conditions in the issuing state, the issuing state might offer an assurance that the requested person will be kept in a prison with acceptable conditions of detention. Although courts place a great deal of weight on assurances, these are inherently unreliable and difficult to monitor after extradition has been ordered.

The right to respect of private and family life, home and correspondence

Extradition has a considerable impact on the right to family life. At the time an extradition request is made, requested persons may have been in the UK for many years and have a spouse, children and extended family, as well as a job or a business. Extraditing them to a foreign country to face trial or a prison sentence for offences which may have happened many years in the past can upend the life not only of the requested person, but also the lives of all their loved ones.

The public interest nevertheless remains that people accused of crimes should be brought to trial and that people convicted of crimes should serve their sentences, and that the UK should honour its treaties with other countries and not become a "safe haven" for criminals. Courts will normally need to be soundly convinced that the impact on the family life of the person requested if they are sent back will be out of all proportion to the nature, gravity and freshness of the offence in the warrant.

Appealing the judge's decision

The requested person can ask for permission to appeal the judge's decision to make an extradition order. Permission must be sought no later than 14 days of the date of the judge's decision. The prosecuting authority also has a right of appeal if the extradition is not ordered.

Bail in extradition proceedings

A requested person benefits from a presumption in favour of bail where they have not yet been convicted in the issuing state. The issuing state will often oppose a grant of bail by arguing that the requested person will fail to attend court. Evidence of family or business ties to show that the requested person stands to lose a lot by absconding can help dispel those concern, as will the availability of a security (a sum of money paid into court which is forfeited if the requested person does not answer bail) or a surety (a person who promises a to pay a sum of money if the requested person does not answer bail) of a substantial value. Where the person is already convicted in the foreign state, obtaining bail will be more difficult.

An extradition warrant which meets all formal requirements is difficult to oppose. To show that any of the statutory bars should apply to prevent the extradition requires not only a thorough investigation of the personal circumstances of the requested person, but also access to legal expertise in a highly technical and constantly evolving area of law.

If you have been sought for extradition to another country and do not wish to consent to be returned, we will carry out thorough investigations to ensure not only that you are in the strongest possible position to obtain bail pending your hearing, but also that all evidence capable of stopping the extradition comes to light. We work with some of the leading barristers who appear before the City of Westminster Magistrates Court and have helped shape the law of extradition in some of the most high profile cases of recent times.

If you have any questions, please contact us in London (West Drayton) on 01895 449288 or in Hertfordshire (St Albans) on 01727 840900 or by email via our contact page.

Matei Clej
Criminal Appeals & Crime Caseworker
Wells Burcombe LLP