Whilst the UK has extradition relations with over 100 territories around the world, these relationships vary greatly by region and by country.
The European Arrest Warrant (EAW), valid throughout all member states of the European Union (EU), is used to arrest and extradite a fugitive to the issuing state so that they can face criminal prosecution.
We investigate the UK extradition process in the context of the EAW, and compare this to the UK/Australia extradition process, as outlined by the UK Government.
Extradition from the UK: European arrest warrant (EAW)
The EAW Framework Decision (Framework Decision) came into force in 2004, with the aim of streamlining the extradition process throughout the EU. The EAW applies to extradition between the UK and the following countries:
The process for extradition from the UK to these territories follows these steps:
- An EAW is submitted (usually an electronic alert)
- Certificate is issued (after a proportionality test is applied)
- Initial hearing
- Extradition hearing
In urgent cases a person may be arrested before the receipt of an EAW. The EAW must be received in time for a court hearing which must be held within 48 hours of the arrest.
The National Crime Agency (NCA) is the designated authority for EAWs.
Under the EAW framework a country receiving an EAW may execute the warrant, even if the offence to which it relates does not constitute a criminal offence in its jurisdiction.
The UK government states however that in almost all cases, there is a “requirement that the conduct would amount to a criminal offence were it to have occurred in the UK”, and there is also a requirement for “minimum levels of severity of punishment.”
The judge must be satisfied that none of the statutory bars to extradition apply, such as the person’s age, rule against double jeopardy and passage of time. Human rights are also considered, for example if the requested person may be subject to torture or an unfair trial once extradited.
Extradition from the UK to Australia
Australia is classified by the UK as a ‘category 2 territory’, along with a range of other countries such as Canada, New Zealand and the USA. The extradition process will therefore be governed by the specific extradition or mutual assistance relationships between these countries.
The extradition process to these territories follows these steps:
- Extradition request is made to the Secretary of State
- Secretary of State decides whether to certify the request
- Judge decides whether to issue a warrant for arrest (the conduct must constitute an ‘extradition offence’ and there is the requirement for dual criminality)
- The person wanted is arrested and brought before the court
- Initial hearing
- Extradition hearing (the same requirements and statutory bars to extradition apply as per the EAW Framework)
- Secretary of State decides whether to order extradition
It is apparent that particularly in the initial stages of the process, there are more steps involved as compared to the process under the EAW Framework. This may influence the timeframe and efficiency of the process.
Extradition of UK Nationals
The UK will, as a matter of policy, extradite its own nationals, providing no bars to extradition apply.
Under both the EAW Framework and in the context of extradition from the UK to Australia, a decision at the extradition hearing can be appealed to the High Court in Scotland. In England, Wales and Northern Ireland, a party who is unhappy with the decision of the High Court on appeal can ask for permission for a further, final appeal to the Supreme Court.