Following the arrest today of Julian Assange, the Home Office published the below statement and factsheet on extradition.
A Home Office spokesperson said:
“We can confirm that Julian Assange was arrested in relation to a provisional extradition request from the United States of America.
“He is accused in the United States of America of computer related offences.”
Guidance on the full extradition process can be found here: https://www.gov.uk/guidance/extradition-processes-and-review
Extradition requests to the UK from outside the EU are governed by Part 2 of the Extradition Act 2003: http://www.legislation.gov.uk/ukpga/2003/41/contents
Where a full extradition request is received, the first stage in the process is for the request to be certified - a decision usually delegated to officials. If the request is certified, the request will be sent to the court, where the judge must decide whether to issue an arrest warrant. Should they do so, the warrant will be sent to the relevant authorities who will seek to arrest the individual.
Following arrest, an extradition hearing is held before the District Judge at Westminster Magistrates’ Court.
The Judge must decide whether any of the statutory bars in the Act apply in the case, including health and human rights and whether extradition should be barred on grounds of the forum bar. The statutory bars on extradition are:
- The rule against double jeopardy;
- Extraneous considerations (where the request for extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing a person on account of their race, religion, nationality, gender, sexual orientation or political opinions, or, if extradited, they might be prejudiced at their trial or punished, detained or restricted in their personal liberty by reason of their race, religion, nationality, gender, sexual orientation or political opinions)
- Passage of time;
- Hostage taking considerations; and
A country may submit a request for provisional arrest on the basis of which an appropriate judge can issue a warrant. Once arrested on the basis of this request the requested person is brought before the judge. The requesting country must then send full extradition papers to the Home Office for certification.
Home Secretary’s role in extradition
Under the 2003 Act, the Secretary of State may only consider four issues when deciding whether to order a person’s extradition. These are:
- Whether the person is at risk of the death penalty;
- Whether specialty arrangements are in place (these ensure that an extradited person may only be proceeded against in respect of the conduct for which extradition was ordered). If the requesting state wishes to proceed on the basis of another offence, they must request the UK’s consent before doing so. Like an extradition request, this request must be considered by UK courts;
- Whether the person concerned has previously been extradited from another country to the UK and the consent of that country to his onward extradition is required;
- Whether the person has previously been transferred to the UK by the International Criminal Court.
Individuals have the opportunity to submit representations to the Secretary of State on these grounds. If the Secretary of State were to order extradition, the individual would have the right to apply to the High Court for leave to appeal against the decisions of both the District Judge and the Secretary of State.
- The Extradition Act 2003 was amended by the Crime and Courts Act 2013 to introduce the forum bar, which ensures that the possibility of a domestic prosecution has been properly explored.
- Forum allows a court to bar an extradition where a substantial measure of the requested person's conduct was performed in the UK and where it is in the interests of justice to do so.
- The Home Secretary has no power to bar extradition under forum.
Forum has been used in a number of cases, including USA v Domminch Shaw.
Human rights considerations
- The Home Secretary may not consider human rights or health issues in extradition cases. It is for a judge to decide whether or not extradition breaches an individual’s human rights, or whether their health makes it unjust or oppressive to extradite them.
- The Extradition Act 2003 was amended by the Crime and Courts Act 2013 to remove the Home Secretary’s ability to consider human rights issues. This followed the independent extradition review led by Sir Scott Baker which recommended that the courts are better placed to make decisions on human rights grounds.
UK/US Extradition agreement
- The Baker review looked in detail at key areas of our extradition arrangements.
- The review panel reported in September 2011 and found that the UK–US treaty was fair and balanced, stating, “we have concluded that the United States / United Kingdom Treaty does not operate in an unbalanced manner”; and “…there is no practical difference between the information submitted to and from the United States”.
The Extradition Act provides that where there are requests for a particular individual from two countries, the Home Secretary may order proceedings on one of the requests to be deferred until the other one has been disposed of. In making the decision on which request to defer, he must take into account in particular:
- The relative seriousness of the offences.
- The place where each offence was committed.
- The date when each request was issued / received.
- Whether the person is accused or convicted of each offence.
The Home Secretary’s consideration is not limited to these factors, but they must be taken into account.