normanfernandez

EXTRADITION PROCEDURES IN THE UK.

Many senior Malaysian lawyers, the Malaysian Bar Council Vice-President included, appear unable to comprehend how to ‘transfer’ my case to the UK and get me tried in a UK court. So that they do not continue embarrassing themselves by making silly statements, maybe I can assist them by giving them a short crash-course on how the system works. Consider this part of my community service.

NO HOLDS BARRED

Raja Petra Kamarudin

Summary of the extradition procedure

1. Extradition requests from Malaysia should be made to the Secretary of State.
2. Some countries are not required to provide prima facie evidence in support of their request for extradition. Malaysia does not fall within this category so evidence will be required.
3. If the request is 'valid' the Secretary of State will issue a certificate and send the request to the court. If the court is satisfied that the request contains the required information an arrest warrant may be issued. It is sent to the police for execution.
4. After the person has been arrested, he is brought before the court as soon as is practicable and the judge sets a date for the extradition hearing.
5. The judge must satisfy himself that the request meets the requirements of the 2003 Act, including dual criminality and prima facie evidence of guilt, and that none of the bars to extradition apply.
6. Finally, the judge is required to decide whether the person’s extradition would be compatible with the convention rights within the meaning of the Human Rights Act 1998. If he decides all of these questions in the affirmative, he must send the case to the Secretary of State for the latter’s decision whether the person is to be extradited. Otherwise, he must discharge the person.
7. The condition of “speciality” requires that the person must be dealt with in the requesting state only for the offences in respect of which the person is extradited and for no other charges other than that.
   

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FURTHER READING

On 1 January 2004, the Extradition Act 2003 came into force. Requests made on or after 1 January 2004 are dealt with under the 2003 Act.

However, with the exception of Gibraltar, unless or until the Crown dependencies and British Overseas Territories amend their legislation, the Extradition Act 1989 (the legislation repealed by the Extradition Act 2003) will still apply to them. Currently, only Jersey has enacted its own extradition legislation.

Extradition relations with category 1 territories are governed by part 1 of the 2003 Act. Part 1 implemented the framework decision on the European arrest warrant (EAW). The Secretary of State has no role in these proceedings.

Extradition Partners under the EAW

Territories designated as category 1 territories as of 2 August 2007 are:

Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Gibraltar, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.

Territories under part 2

Territories designated under part 2 are non-EU members of the European Convention on Extradition; or the London Schememe for Extradition within the Commonwealth; or else they are parties to bilateral extradition treaties with the UK. The countries involved are:

Albania, Algeria, Andorra, Antigua and Barbuda, Argentina, Armenia, Australia, Azerbaijan, The Bahamas, Bangladesh, Barbados, Belize, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Brunei, Canada, Chile, Colombia, Cook Islands, Croatia, Cuba, Dominica, Ecuador, El Salvador, Fiji, The Gambia, Georgia, Ghana, Grenada, Guatemala, Guyana, Hong Kong Special Administrative Region, Haiti, Iceland, India, Iraq, Israel, Jamaica, Kenya, Kiribati, Lesotho, Liberia, Liechtenstein, Macedonia (FYR), Malawi, Malaysia, Maldives, Mauritius, Mexico, Moldova, Monaco, Montenegro, Nauru, New Zealand, Nicaragua, Nigeria, Norway, Panama, Papua New Guinea, Paraguay, Peru, Russian Federation, Saint Christopher and Nevis, Saint Lucia, Saint Vincent and the Grenadines, San Marino, Serbia, Seychelles, Sierra Leone, Singapore, Solomon Islands, South Africa, Sri Lanka, Swaziland, Switzerland, Tanzania, Thailand, Tonga, Trinidad and Tobago, Turkey, Tuvalu, Uganda, Ukraine, the United Arab Emirates, the United States of America, Uruguay, Vanuatu, Western Samoa, Zambia and Zimbabwe.

Extradition request

Extradition requests from category 2 territories to the United Kingdom should be made to the Secretary of State. If the request is 'valid' the Secretary of State will issue a certificate and send the request to the court. The request is valid if it states that it is a request for a person accused or convicted of an offence and it is made by an appropriate authority of the requesting territory such as a diplomatic or consular representative.

Documentation require

Generally the information required to accompany the request will include:

1. particulars of the person whose return is requested
2. particulars of the offence of which he is accused or was convicted
3. in the case of a person accused of an offence, a warrant or a duly authenticated copy of a warrant for his arrest issued in the requesting state, or for a provisional arrest, details of such a warrant
4. in the case of a person unlawfully at large after conviction of an offence, a certificate or a duly authenticated copy of a certificate of the conviction and the sentence, or for provisional arrest, details of the conviction
5. evidence or information that would justify the issue of a warrant for arrest in the UK, within the jurisdiction of a judge of the court that would hold the extradition hearing.
   

If the court is satisfied that the request contains the required information an arrest warrant may be issued. It is sent to the police for execution.

Requesting states are advised to submit a draft request to the Crown Prosecution Service to ensure potential difficulties are resolved before the request is finally submitted

Evidence require

Some countries are not required to provide prima facie evidence in support of their request for extradition. These countries are (as of 1 January 2007):

Albania, Andorra, Armenia, Australia, Azerbaijan, Bosnia and Herzegovina, Canada, Croatia, Georgia, Iceland, Israel, Liechtenstein, Macedonia FYR, Moldova, Montenegro, New Zealand, Norway, Russian Federation, Serbia, South Africa, Switzerland, Turkey, Ukraine and the United States of America.

Preliminary hearing

After the person has been arrested, he is brought before the court as soon as is practicable and the judge sets a date for the extradition hearing.

Extradition hearing

The judge must satisfy himself that the request meets the requirements of the 2003 Act, including dual criminality and where appropriate, prima facie evidence of guilt; and that none of the bars to extradition apply (the rule against double jeopardy; extraneous considerations; passage of time or hostage-taking considerations).

Finally, he is required to decide whether the person’s extradition would be compatible with the convention rights within the meaning of the Human Rights Act 1998. If he decides all of these questions in the affirmative, he must send the case to the Secretary of State for the latter’s decision whether the person is to be extradited. Otherwise, he must discharge the person.

Secretary of State

Where a case is sent to the Secretary of State she must consider whether surrender is prohibited because:

1. the person could face the death penalty: This is an absolute prohibition unless the Secretary of State receives an adequate written assurance from the requesting state that the death penalty will not be imposed, or will not be carried out, if imposed
2. there are no speciality arrangements with the requesting country: The condition of “speciality” requires that the person must be dealt with in the requesting state only for the offences in respect of which the person is extradited (except in certain limited circumstances)
3. the person was earlier extradited to the UK: this might require the Secretary of State to obtain the consent of the earlier extraditing country, before the person can be extradited on to the requesting state.
   

With effect from 15 January 2007, the defence has to make any representations within four weeks of the case being sent to the Secretary of State (28 days, including the day on which the case was sent). The Secretary of State’s decision has to be made within eight weeks of the day the case is sent to him, otherwise the person may apply to be discharged. This equalises the time within which representations must be made to the Secretary of State with the time in which the Secretary of State has to consider those representations, (previously, the defence had six weeks to submit representations.)

However, if the representations are complex and require enquiries being made of the requesting state, the Secretary of State may apply to the High Court for an extension of the decision date, of any length but usually of no more than two months – it is a matter for the court as to whether and for how long this is granted, although it has not to date refused any such application. More than one extension may be sought in any one case; and granted if it appears necessary.

If the Secretary of State does find that surrender is prohibited, she must order the discharge of the person. If none of the three prohibitions apply, or appropriate assurances have been given, the Secretary of State must order the person to be extradited.