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  • Stuart McDonald

An Introduction to Extradition

The process of extradition, the sending of individuals from one country to another either to face prosecution or to serve a sentence of imprisonment imposed following a conviction, has long been a complicated procedure. Prior to 2003, the Court (originally Bow Street Magistrates’ Court and later Horseferry Road), having determined there was sufficient evidence to support a prosecution in the foreign state and no legal reason for refusing the request, would “commit” the individual for a final decision by the Home Secretary.

In 2002, a “Framework Decision” was agreed by the European Union which was intended to simplify and speed up the process and the European Arrest Warrant (or ‘EAW’) came into being. The decision to extradite would be for the Court alone, there would be no need to assess the evidence as the request would be subject to an assumption that all legal systems involved would uphold a similar basic standard in fairness and “due process”, to borrow an American term, and adherence to the European Convention on Human Rights underpinned the whole scheme. Significantly, the Court of final resort in EAW case would be the Court of Justice of the European Union – the “CJEU”.

The decision to leave the EU in 2016 meant withdrawal from the EAW system. The Act of 2003 was therefore amended and there are now different systems depending (predominantly) on whether the ‘requested person’ is sought in the Europe Union – known as a ‘Part One’ case – or elsewhere, known as a ‘Part Two’ case, with reference to which part of the Act applies.

Part One cases are very similar to the EAW procedure; there is no requirement to demonstrate a prima facie case and the decision is for the District Judge sitting at Westminster Magistrates’ Court, the Court which hears all cases following arrests in England and Wales. An extradition can only be opposed on limited grounds, known as “bars to extradition” which are set out in the Act.

Part Two cases continue to require the demonstration of a prima facie case (with exceptions for “specified territories” such as Canada, Scandinavian countries and the USA). Similar bars to extradition apply. A key difference is that in a Part Two case, the District Judge sends the case to the Home Secretary for the ultimate decision.

Bail can be granted in any case but almost invariably a cash security will have to be lodged with the Court as a pre-release condition. Appeals are heard at the High Court, unlike in criminal cases where an appeal may be heard at the Crown Court.

Legal disclaimer: Articles are intended as an introduction to the topic and do not constitute legal advice. The information contained herein is accurate at the date of publication but please note that the law is ever changing and evolving. If you require advice in relation to any matter raised in this article please contact a member of the team.


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