EAW Extradition: processes and review

Extradition from the UK under European arrest warrant (EAW)

The EAW – European Arrest Warrant applies to extradition between the UK and mainly other EU countries, namely Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Gibraltar, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, territories (designated as “category 1 territories” under Part 1 of the Extradition Act 2003.

The process for extradition from the UK to these territories follows these steps:

  • an EAW is submitted (usually electronically, by means of an alert placed on the Second Generation Schengen Information System known as ‘SISII’)
  • certificate is issued (after a proportionality test is applied)
  • arrest
  • initial hearing
  • extradition hearing

In urgent cases a ‘requested person’ (the person a country is requesting be surrendered for prosecution or for punishment) can 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 and the UK SIRENE Bureaux for the purposes of EAW alerts under SISII.

Issuing a certificate

The NCA can only issue a certificate if the requirements of section 2 of the 2003 Act are met (including a proportionality test). Once issued the requested person can then be arrested and, once arrested, must be brought before a district judge at the magistrates’ court (or in Scotland, a sheriff at the sheriff’s court) as soon as practicable.

Initial hearing

At the initial hearing the judge must:

  • confirm the identity of the requested person (ie that the person brought before him or her is the person named on the warrant)
  • inform the person about the procedures for consenting to his or her extradition
  • fix a date for the extradition hearing if the requested person does not to consent to his or her extradition

Extradition hearing

The extradition hearing should normally begin within 21 days of arrest.

The judge must be satisfied that the conduct described in the warrant amounts to an extradition offence (including, in almost all cases, the requirement that the conduct would amount to a criminal offence were it to have occurred in the UK, and minimum levels of severity of punishment), and that none of the statutory bars to extradition apply. These bars are:

  • rule against double jeopardy
  • the absence of a prosecution decision (whether the prosecution case against the accused is sufficiently advanced)
  • extraneous considerations (whether the request for extradition is improperly motivated)
  • passage of time
  • the requested person’s age
  • speciality (the requested person must only be dealt with in the requested state for the offences for which they have been extradited)
  • onward extradition (where the requested person has previously been extradited to the UK from a third county, and consent for onward extradition from that country is required but has not been forthcoming)
  • forum (whether it would be more appropriate for the requested person to be prosecuted in the UK instead)

The judge must also decide if extradition would be disproportionate or would be incompatible with the requested person’s human rights. If the judge decides it would be both proportionate and compatible, extradition must be ordered.

Appeals: High Court (High Court of Judicature in Scotland)

If either the requested person or the requested state to the extradition proceedings is unhappy with the judge’s decision at the extradition hearing, they may ask the High Court for leave (permission) to appeal. An application for permission to appeal must be made within 7 days of the relevant decision being made (ie an order for extradition or an order discharging the extradition case against the requested person). If the High Court grants permission, it will go on to consider the appeal.

If the High Court allows an appeal brought by the requested person, it will quash the order for extradition and order the person’s discharge. If the High Court allows an appeal brought by the requesting state, it will quash the order discharging the person and will send the case back to the magistrates’ or sheriff’s court for a new decision to be taken.

Appeals: Supreme Court

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. Permission can either be given by the High Court or by the Supreme Court itself. An appeal to the Supreme Court can only be made where the case involves a point of law of general public importance. If permission is granted, the Supreme Court will hear the appeal.

In Scotland, the Supreme Court will only hear an extradition case where it involves a ‘devolution issue’.

Surrender of a requested person

The person should normally be extradited within 10 days of the final court order. This time limit can be extended in exceptional circumstances, and with the agreement of the requesting state.”

This article is published by the UK Government website.

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