Extradition Cases

Sky News interview of Giovanna Fiorentino about Julian Assange - Lansbury Worthington

Corporate Crime analysis: Julian Assange - A contest of Jurisdictions

Abigail Bright, barrister at Doughty Street Chambers, and Giovanna Fiorentino, solicitor at Lansbury Worthington Solicitors, consider some of the legal issues surrounding the arrest of Julian Assange and the US extradition request. 

Julian Assange - A contest of Jurisdictions

With considerable expertise in this field having dealt with extradition cases all the way from the Magistrates’ Court to the High Court and the House of Lords our extradition team will be able to assist you at all stages of the extradition proceedings on a legal aid or private basis.

Extradition: A Brief Outline

Introduction

Extradition is the formal procedure for returning persons located in one country to another country for the purpose of criminal prosecution, to be sentenced for offences for which they have been convicted or for the carrying out of a sentence that has already been imposed.

Similar but separate procedures apply in Scotland and Northern Ireland.

This is a simple introduction to what can be a very complex procedure and is neither comprehensive nor a statement of the law.

The Extradition Act 2003 came into force on 1 January 2004 and all import and export extradition requests submitted or received from this date forward are covered by the Act.

Export extradition request - a request for the extradition of someone from the UK. Also known as "incoming" extradition.

Import extradition request - a request for the extradition of someone to the UK. Also known as "outgoing" extradition.

Extradition Act 2003 - Structure

The Extradition Act 2003 is divided into five parts:

• Part 1 - Extradition to Category 1 Territories
• Part 2 - Extradition to Category 2 Territories
• Part 3 - Extradition to the UK
• Part 4 - Police Powers in relation to export extradition requests
• Part 5 - Miscellaneous and general (Details available on the Home Office Website

Part 1 - Extradition to category 1 territories.

This essentially means export extradition to all EU countries operating the European Arrest Warrant (EAW) System which have been designated as such by the Home Secretary. (An up to date list of territories and their extradition status in relation to the UK can be found on the Home Office Website.)

Arrest on a Certified EAW

The subject of an EAW ("the person") may be arrested by a police or customs officer on the basis of the certified EAW itself (see above). Where this happens they must be produced at Westminster Magistrates' Court as soon as practicable.

Provisional Arrest

In circumstances of urgency the person may be arrested by a police or customs officer who has reasonable grounds for believing that an EAW has been or will be issued. This is known as provisional arrest. Where this happens the person must be produced at Westminster Magistrates' Court within 48 hours of arrest along with the certified Part 1 warrant.

Initial Hearing

The first hearing after arrest is known as the initial hearing. It is conducted in front of a District Judge. At the initial hearing the District Judge must:

• Decide whether the individual arrested is the person named on the warrant.
• Fix a date for the start of the extradition hearing within 21 days of the date of arrest.
• Inform the person about the content of the EAW.
• Explain to the person that he/she may consent to return.
• Decide whether to grant bail or remand the individual in custody pending the Extradition Hearing.

Extradition Hearing

At this hearing the District Judge must decide a number of issues, such as:

• Is the offence an extraditable offence?
• Are there any bars to the extradition?
• Is the extradition compatible with the person's rights under the European Convention on Human Rights?

If the District Judge is satisfied that these issues have been met then they must make an order for the person's extradition.

Appeals

Appeals against the District Judge's decision go to the Administrative Court. Notice of appeal must be lodged within 7 days. The appeal must commence within 40 days of arrest, although the Administrative Court can extend this period if the interests of justice require it to do so. It is possible to appeal from the Administrative Court to the Supreme Court, provided that the Administrative Court certifies that the appeal involves a point of law of general public importance and either the Administrative Court or the Supreme Court gives leave for the appeal to be brought.

Extradition

Where there is no appeal, the person must be extradited to the requesting category 1 territory within 10 days of the extradition order. Otherwise extradition must take place within 10 days of the conclusion of the appeal proceedings, assuming that the outcome of the appeal does not affect the extradition order.

Requests made when there are existing domestic matters

If an extradition request is made for a defendant who has already been charged with an offence in the UK, he can only be extradited once the domestic proceedings have concluded and any sentence subsequently imposed has been served.

If the defendant has already been convicted and is serving a sentence of imprisonment in the UK the extradition proceedings may either be postponed until the defendant has completed his sentence or, if the purpose of the extradition is so that he can stand trial in the requesting country, an order may be made for his temporary extradition. This can only happen if the requesting country undertakes to return the defendant at the conclusion of his trial in order to serve the remainder of his UK sentence. Once the domestic sentence has been completed there will be further proceedings to determine if the defendant should then be extradited back to the requesting country to serve any sentence imposed as the result of the foreign trial. Although permitted by UK law, some international extradition agreements do not permit temporary surrender.

Part 2 - Extradition to category 2 territories.

In effect this means export extradition to all other countries, including other EU countries that have not yet implemented the EAW.

Arrest on a Certified Request

Once the Home Secretary has issued a certificate, if the person has not been provisionally arrested, the police may apply to City of Westminster Magistrates' Court for an arrest warrant. Once the person has been arrested they must be produced at City of Westminster Magistrates' Court as soon as practicable.

Provisional Arrest

In circumstances of urgency the requesting territory may ask the police to apply for an arrest warrant before the request has been certified. This is known as a provisional warrant. A police or customs officer may execute it. Once arrested, the person must be produced at City of Westminster Magistrates' Court as soon as practicable.

Initial Hearing Following Arrest on a Certified Request

This is conducted in front of a District Judge who must:

• Inform the person about the content of the extradition request.
• Explain to the person that he/she may consent to return.
• Fix a date for the start of the extradition hearing. This must be no more than 2 months from the date of the first appearance.
• Decide whether to grant bail or remand the person in custody pending the extradition hearing.

Initial Hearing Following Provisional Arrest

This is conducted in front of a District Judge who must:

• Tell the person why he/she has been arrested.
• Explain to the person that he/she may consent to return.
• Decide whether to grant bail or remand the person in custody pending receipt of the certified extradition request.

The District Judge discharges the person if the certified request is not received by the court within the required period. This will be a minimum of 45 days from arrest but may be longer depending upon the particular extradition treaty or convention.

Once the certified request is received the District Judge must fix a date for the extradition hearing. This hearing must take place within 2 months of the receipt of the certified request.

Extradition Hearing

At the Extradition Hearing the District Judge must:

• Decide whether the documentation sent to the Court by the Home Secretary complies with the Act.
• Decide whether the individual arrested is the person named on the warrant.
• Decide whether the offence detailed in the request is an extradition offence.
• Be satisfied that the person has been given copies of the request, the Home Secretary's certificate and any relevant Order in Council.
• Decide whether any of the bars to extradition apply.
• Be satisfied that the request contains admissible evidence of the offence sufficient to establish a prima facie case against the person. This requirement does not apply in respect of extradition requests from the USA, Canada, Australia and New Zealand.
• Decide whether the extradition would be compatible with the person's rights under the European Convention on Human Rights.

If the District Judge is satisfied on all these issues they must send the case to the Home Secretary who decides whether to order extradition.

Extradition Decision

The Home Secretary must order extradition within 2 months unless any of the following grounds apply:

• The person has been/could be/will be sentenced to death;
• There are no speciality arrangements in force with the requesting territory (these ensure that the person extradited will only be dealt with for those matters in respect of which his extradition is ordered); and
• If the person has been extradited to the UK they cannot be extradited to another country without the consent of the country they were originally extradited from.

Appeals

Appeals against the decisions of the District Judge and/or the Home Secretary go to the Administrative Court. Notice of appeals must be given within 14 days of the decision. The Administrative Court must start to hear the appeal within 76 days of the notice. It is possible to appeal from the Administrative Court to the House of Lords, but this can only happen if the Administrative Court certifies that the appeal involves a point of law of general public importance and either the Administrative Court or the Supreme Court grants leave to appeal.

Extradition

If no notice of appeal is filed within 14 days of the Secretary of State informing the person of his decision, the person must be extradited to the requesting territory within 28 days of the Home Secretary's order for extradition. Where there has been an appeal, extradition must take place within 28 days of the conclusion of the appeal proceedings, assuming that the outcome of the appeal does not affect the extradition order.

Requests made when there are existing domestic matters

If an extradition request is made for a defendant who has already been charged with an offence in the UK, he can only be extradited once the domestic proceedings have concluded and any sentence subsequently imposed has been served.

If the defendant has already been convicted and is serving a sentence of imprisonment in the UK the extradition proceedings may either be postponed until the defendant has completed his sentence or, if the purpose of the extradition is so that he can stand trial in the requesting country, an order may be made for his temporary extradition. This can only happen if the requesting country undertakes to return the defendant at the conclusion of his trial in order to serve the remainder of his UK sentence. Once the domestic sentence has been completed there will be further proceedings to determine if the defendant should then be extradited back to the requesting country to serve any sentence imposed as the result of the foreign trial. Although permitted by UK law, some international extradition agreements do not permit temporary surrender.

Part 3 - Extradition to the UK.

Terminology

Export extradition request - a request for the extradition of someone from the UK. Also known as "incoming" extradition.

Import extradition request - a request for the extradition of someone to the UK. Also known as "outgoing" extradition.

EAW: European Arrest Warrant. This scheme is based on the European Council Framework Decision on the European Arrest Warrant. The EAW is designed as a common extradition arrest warrant enforceable through the EU. To date only some Member States have implemented the scheme. The Framework Decision sets out a common scheme for dealing with EAWs which Member States are then obliged to implement through national legislation. Although there may be some differences at national level, the key features are that the whole extradition process should usually take no longer than 60 days with the decision to extradite being taken by a court rather than a government minister.

Minimum Requirements

Extradition to the UK can only be sought if the following conditions are met

• There is an extradition convention or treaty in force with the country concerned.
• The offence is an extradition offence within the meaning of the relevant convention or treaty. Usually this will require the offence concerned to be punishable by at least 12 month's imprisonment and in a conviction case where the defendant has been sentenced, where a minimum of 4 months imprisonment has been imposed.
• The purpose of seeking extradition is to secure the person's return to face prosecution for that offence or, if convicted, to be sentenced /to carry out a sentence already imposed.

Extradition Under the EAW Scheme

Where the person concerned is located in a country participating in the EAW scheme, extradition will be pursuant to that scheme. The issue of the EAW in the UK is regulated by Part 3 of the Extradition Act 2003. The Act provides that a number of persons including a prosecutor and a police officer may apply to the court for an EAW. The court may issue an EAW where a UK warrant has already been issued for the person's arrest and there are reasonable grounds for believing that the person has committed an extradition offence or is unlawfully at large following conviction.

Once issued, the EAW will be transmitted to the country concerned by NCIS. The procedure will then be in accordance with the legislation implementing the EAW scheme in that country. This will be designed to secure the return of the person to the UK within 60 days of arrest.

Extradition From Non-EAW Countries

Requests to countries which do not operate the EAW scheme will be made by the UK on a state-to-state basis according to the relevant extradition arrangement. This could be through bi-lateral agreement, multilateral convention or an ad hoc arrangement.

Further details about the Extradition Act 2003 can be found on the Home Office website - www.homeoffice.gov.uk.