All you need to know about extradition

Although 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.

This means that extraditing the person must not breach 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 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).

Either 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.

There 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. 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.