Extradition is an important tool in our fight against transnational crime.
Once the UK has received an extradition request and it has been certified, it is sent to 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.
A judge decides whether the case raises any human rights issues and whether the case passes the five statutory bars to extradition.
- The rule against double jeopardy - meaning that the person cannot be tried twice for the same offence;
- Extraneous considerations - where it is considered that the person is being prosecuted because of their race, religion, nationality, gender, sexual orientation or political opinions;
- Passage of time - meaning that so much time has passed since the offence was committed that it would be unjust for them to be tried now;
- Hostage taking considerations - a very narrow ground of refusal arising from the Hostage Taking Convention in cases involving the taking of hostages; and
- Forum - where a significant part of the conduct took place in the UK and it would not be in the interests of justice for them to be tried abroad for that offence
If a judge finds that it passes the five bars, it is sent to the Home Secretary.
Home Secretary’s role in extradition
Under the Extradition Act 2003, the Home Secretary’s role is to sign extradition orders. The Home Secretary is bound by law to sign the order unless one of the following grounds for refusal are met:
- Whether the person is at risk of the death penalty;
- Whether specialty arrangements are in place (these need to be in place to ensure that an extradited person only faces proceedings 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;
- Whether the person concerned has previously been extradited from another country to the UK and the consent of that country to their onward extradition is required; and
- 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 none of the above four tests provide grounds to refuse the request, the Home Secretary must order extradition. The Home Secretary cannot, by law, consider any other grounds.
If the Secretary of State orders extradition, the individual has 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 – it is a factor considered by the courts alone.
Forum has applied as a bar to extradition 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 review of extradition led by Sir Scott Baker which recommended that the courts are better placed to make decisions on human rights grounds.
- The US are an important extradition partner. It is in our national interest to have a balanced, effective extradition relationship which prevents criminals evading justice and the UK becoming a haven for fugitives.
- The US has refused one UK extradition request. Conversely, the UK has refused 24 extradition requests from the US.
- All individual extradition requests are subject to the Extradition Act 2003, which requires a UK judge to decide whether the requested person's extradition would be appropriate based on the safeguards and protections included in the Act. This UK law ensures all individuals who find themselves requested for extradition are subject to the same criteria regardless of where the request is from or the terms of any international legal framework that is in place. The UK-US Extradition Treaty does not guarantee that every person sought by the US will be extradited, or vice versa.
- The US do not get special treatment under the Extradition Act 2003. All extradition requests are subject to the Extradition Act, 2003 – which provides safeguards and protections. This is UK law, before British courts and ensures all individuals are subject to the same criteria.
- 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