If you or a family member are currently facing extradition proceedings, please call Edward Hayes LLP’s extradition lawyers in Central London in close proximity to Westminster Extradition Court on 0207 3530011 or firstname.lastname@example.org
Extradition on a European arrest warrant is not a formality if you instruct Edward Hayes LLP - the leading UK extradition law firm are ready to challenge any EAW.
In order to extradite from the UK there are a number of Bars or hurdles the prosecution must overcome plus other procedural issues ‘bars’ to extradition include:
- 1. Double jeopardy - this means facing proceedings for the same offence twice.
- 2. Passage of time - where so much time has passed since the original offence that it is unfair or oppressive to proceed against a defendant.
- 3. Age - where the defendant would have been under the UK age of criminal responsibility when the original offence took place.
- 4. Hostage taking - Whether an earlier extradition has already taken place from another country, consent may be needed before another extradition takes place.
- 5. Extraneous issues- this means when the proceedings in the foreign state are actually a cover for an ulterior motive, or where the person will be disadvantaged during the foreign proceedings because of that same ulterior motive, for example, racial or political victimisation.
Further aspects a judge must consider
Conviction in absenceAlthough putting someone on trial in their absence is fairly unusual in the UK, it happens more in the EU. This means that EAWs are sometimes issued following a person being convicted and sentenced without having been present at their trial. In those cases, the person cannot be extradited unless they will have the right to a retrial in the foreign state.
Compatibility with the Human Rights Act 1998This means that extraditing the person must not breach of his or her human rights as laid out in the European Convention on Human Rights. These rights include the right to a fair trial, protection from torture or inhuman treatment, the right to respect for family life etc.
The Dual Criminality TestThe offence for which the person is extradited must be an offence in the UK as well as in the foreign state, unless it is one of a list of 32 specified serious offences which are considered to be crimes in all countries (for example, murder, drug trafficking etc.). If the offence is on that list, the ‘seriousness’ test is increased to a maximum sentence of at least 3 years in prison (where the person is merely accused) or an actual sentence of at least 12 months in prison (where the person has been convicted and sentenced).
Appeals against extraditionEither side in an extradition case can appeal the magistrates court decision to the High Court. A final appeal can go to the Supreme Court but only in cases where there is a ‘point of law of general public importance’. This usually means where the legal issue is one that could change the way the law works for other cases in the future.
Extradition Act Part 2 - Extradition Treaty CountriesThere are two additional categories of extradition. The first category includes European countries which aren’t part of the European Arrest Warrant system (for example Norway and Croatia), and also many non-European countries including Canada, the US, Australia, New Zealand, South Africa and Russia. These countries do not have to show the strength of the case against the person, but must provide details of the case in the foreign country.
The second category includes extradition treaty countries from Africa, Asia, South and Central America, and the Caribbean, here the extradition court has to be satisfied that there is a prima facie case (i.e. on the face of it an obvious case to answer). Extradition cases involving this category of country (which includes, Thailand, Jamaica, Morocco, Egypt, India, Pakistan) can be defeated on the strength of the evidence. The UK court must be persuaded that the case against the defendant has some real basis before extraditing. EDWARD HAYES LLPs extradition team have won many victories in extradition cases
Each requires the agreement of both the court and the UK’s Home Secretary. For both categories the details of the offence and identity of the person must be proved.
Bars to extradition apply, including the rule against double jeopardy, and extraneous issues, Human rights issues, and the ‘dual criminality test’ .Any of these may also prevent extradition.
If the court has authorised extradition, in cases where there is no European Arrest Warrant, the Home Secretary must consider whether to allow extradition. He must consider whether the death penalty may apply, and if so must refuse extradition unless the country gives reassurances that the death penalty will not be used. The Home Secretary will also refuse extradition unless he is sure that there are rules in the foreign country to stop the person from being tried for any offences which weren’t included within the extradition request.
Bail in extradition proceedingsThere is a presumption in favour of bail in extradition proceedings where there has not yet been a conviction in the foreign country. The foreign country (usually represented by the CPS), will often try to prevent this, by making objections in court on the basis of the likelihood that the person will not attend. Because there is often an accusation that the person has ‘escaped justice’ in the original country, this may be quite persuasive to a judge. Because of this, evidence of ties to the UK and their family life here can be particularly important. The court may often require a cash security before granting bail.
In cases where the person has already been convicted in the foreign state, bail may be more difficult to obtain.
Extradition CostsUnlike general criminal proceedings where the government have astonishingly abolished recovery of defence costs in the Crown Court (an attempt to encourage you to use under paid overworked and often incompetent legal aid lawyers) you can still be awarded a defendants costs order if you are successful in resisting extradition. IF YOU CAN,YOU SHOULD PRIVATELY INSTRUCT US THEREBY AVOIDING LEGAL AID.
Extradition AppealsIf a person is ordered to be extradited at the magistrates court, that person has a right of appeal to the High Court. In some cases, there may be a right of appeal to the Supreme Court, but permission, or ‘leave to appeal’, is required.
General Extradition InformationExtradition is the surrender of an alleged criminal by one State or Nation to another having jurisdiction over the crime charged.
International extradition is usually carried out pursuant to the terms of a treaty between two countries.
Extradition and mutual assistance cases are increasingly common in the post 9/11 world and the use of the internet vastly opens up the possibilities of extradition.
With the aim of modernising UK extradition law after the introduction of new European extradition procedures (the European Arrest Warrant) the Government controversially introduced the Extradition Act 2003 which came into force at the beginning of 2004. Under the Act 48 territories (including the US) may now extradite persons from the UK seemingly without evidence! In addition treaties with the UAE and other Nations are in the process of ratification. Controversy has arisen specifically about arrangements for the US because of perceived lack of reciprocity.
There have been important developments within extradition laws including successful challenges on the basis of the European Convention on Human Rights.
The globalisation of criminal law arising from terrorism, money laundering and corruption means that extradition and mutual legal assistance increase the impact on domestic law.
From our experience of international criminal law we can assist our clients in advising on the admissibility of wire tapped evidence obtained in a foreign jurisdiction; trials in absence and the right to a re-trial; obtaining evidence from overseas and negotiating plea bargains with foreign prosecuting authorities.
We have access to the very best barristers who have acted in the foremost extradition litigation - for individuals and foreign governments in dozens of High Court appeals and as expert witnesses in foreign jurisdictions.
Recent cases included successfully overturning European arrest warrants in East Germany, Poland and Spain.
There are important issues surrounding extradition and it is vital that you immediately seek the assistance of a specialist in relation to the legality of the proceedings including human rights.
We have successfully represented numerous individuals facing extradition and have specialist lawyers with vast experience of this complex subject available.