Extradition

Extradition

Extradition is the formal legal process involving the delivery of an accused or convicted individual from one state to a requesting state. Extradition is a process which operates between states and is given effect within the UK by the courts (and the executive to some extent).

Extradition cases are by their nature high profile and complex. Extradition requests are wide-ranging, both in terms of the requesting state (such as Russia, USA and the UAE) and in terms of the offences alleged by these states (including criminal investigations, fraud, corruption and business crime).

It is crucial to seek extradition advice from expert extradition lawyers as soon as possible because: (i) being the target of an extradition request requires speed of action for the accused as the extradition process is relatively streamlined and quick; (ii) pre-emptive steps can be taken before an extradition request is made to avoid an unexpected arrest; and (iii) extradition is a complex area of law governed by bilateral extradition treaties (for example between the USA and UK) and by the Extradition Act 2003 therefore early instruction is important to maximise chances of success in the case.

What is extradition?

Extradition is the formal legal process where one state requests that another state return a person in order to be prosecuted, be sentenced for an offence for which the individual has already been convicted, or to carry out a sentence already imposed.

The form of an extradition request depends on which state requests the extradition. Within the EU, a European Arrest Warrant is issued and you can be arrested without any further warrant from a court in the UK. For extradition to a non-EU state, the state will make a formal extradition request to the Home Secretary.

What happens if an individual is subject to an extradition request?

Any individual subject to an arrest warrant issued following a request from the Home Secretary or a European Arrest Warrant, then the individual is liable to being arrested immediately. In some situations, an individual can be arrested even before a European Arrest Warrant or extradition request has been issued (if they are imminent).

Following arrest, an individual will be taken into custody and taken to Westminster Magistrates’ Court.

How to Challenge Extradition Requests

Heavily contested areas within the law of extradition are in relation to statutory bars to extradition (in particular on human rights concerns).

Although in practice, many extradition hearings are procedural, in every case requested persons are entitled to present arguments against extradition on the basis of statutory bars:

Double Jeopardy

Extradition can be challenged (pursuant to section 12 and 80 of the Extradition Act 2003), if it appears that the accused would be entitled to be discharged under any rule of law related to a previous acquittal or conviction.

For example, the appellants in Fofana v France [2006] Extradition L.R. 102, successfully appealed orders directing their extradition to France made pursuant to the Extradition Act 2003 by submitting that the extradition offence would (to some extent) breach the double jeopardy principle and would be an abuse of process.

Absence of Prosecution Decision

Extradition will be barred where an accused person satisfies the court that there are reasonable grounds to believe that no decision to charge has been made in the case and the absence from the requesting state is not the sole reason that these decisions have not been made. By submitting this argument, the burden of proof then shifts to the requesting state and if they cannot prove this, then the judge must discharge the individual.

For example, the High Court have provided guidance on the “no prosecution decision” argument in Kandola v Germany [2015] EWHC 619 (Admin), where extradition sought by Germany was barred for this reason.

Extraneous Considerations

Extradition will be barred under section 13 and section 81 of the Extradition Act 2003 by reasons of extraneous considerations, if it can be shown that the warrant was issued for the purposes of prosecuting the individual on account of religion, race, nationality, gender, sexual orientation or political opinion.

Following R. v Governor of Pentonville Prison Ex p. Fernandez [1971] 1 W.L.R. 987, in order to prevent extradition, the individual must demonstrate that there is a “reasonable chance” on the balance of probabilities that there is a link causally between the warrant’s issue and and the extraneous considerations in issue.

Passage of Time

Sections 14 and 82 of the Extradition Act 2003 is in practice the most common bar raised to extradition. It is well established that a bar exists where because of the passage of time since the extradition offence was committed, it appears that the extradition would be unjust. However, it is unlikely that this defence can be relied upon by an individual who seeks to rely on delay of that person’s making (“classic fugitives”).

Abuse of Process

The UK Courts have an implied jurisdiction to discharge an individual if extradition would constitute an abuse of process. It was established in R. (on the application of United States) v Bow Street Magistrates’ Court [2006] EWHC 2256 (Admin) that a judge must not accede to an extradition request unless (on the balance of probabilities) that such an abuse has not occurred.

Abuse of process arguments available in the UK include usurpation of the statutory scheme and manipulating procedures to unfairly prejudice a defendant.

Proportionality

Under the Anti-social Behaviour, Crime and Policing Act 2014, a judge is now required to consider whether any extradition to stand trial would be disproportionate. The High Court has provided commentary on this new bar in Miraszewski v Poland [2014] EWHC 4261 (Admin) which includes: (i) considering the seriousness of the extradition offence; (ii) the likely penalty imposed if found guilty of the extradition offence and (iii) considering the possibility of foreign authorities taking less coercive measures than extradition of the requested individual.

Specialist Legal Advice on Securing Bail and Extradition Appeals

Our extradition lawyers have practical knowledge of contesting extradition requests and other issues surrounding an extradition request by a state. It is imperative to an effective defence to work with lawyers in the jurisdiction of the extraditing state. For example, in cases where the USA is the requesting state, working with American lawyers is common especially in circumstances where plea-bargaining with the Department of Justice is common practice.

Challenging INTERPOL Red Notices

An INTERPOL Red Notice has the effect of restricting an individual’s ability to do business or to travel. Red Notices have the effect of triggering an arrest and leading to extradition proceedings.

Before taking action and seeking the deletion of Red Notices, it is important to seek legal advice from specialists extradition lawyers because deletion of a red notice does not automatically prevent arrest and could harm any future extradition or criminal defence.

Expert UK Criminal Defence Advice

Our lawyers are highly effective and have many years of experience of advising and representing clients in cases of alleged fraud, money laundering, asset forfeiture, serious and organised crime, regulatory issues and in complex and high-profile appeals against conviction. They bring to bear all their specialist legal acumen in order to provide clients with results that often surpass expectations and regularly exceed the outcomes of co-defendants. We have obtained bail for clients in circumstances where all other co-defendants have been refused bail and even in circumstances where our new client has previously had bail refused.

We assist with initial consultation and advice, Police and other co-operative investigation through to representation at Court and Appeal where necessary. We provide immediate legal assistance and are often instructed by clients who are due to attend court or need advice at short notice. In such circumstances, our team will prioritise your case and ensure that you receive urgent legal assistance.

Instruct Specialist Extradition Solicitors and Barristers

If you require assistance or advice in relating to an extradition, our highly experienced solicitors and barristers are able to assist. We have practical knowledge of challenging extradition requests, European arrest warrants, Interpol Red Notices, securing bail, voluntary surrender and appeals of extradition orders.

We invite you to contact us so we can assess your claim. We can subsequently provide urgent help, advice or representation to clients from our expert legal team of leading Criminal Defence solicitors and barristers. Just call or email us now; our private prosecution lawyers and criminal defence team are waiting to help.

To contact us about your case please call us on: 0207 1830 529 or email: contact@lexlaw.co.uk

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