I may be a criminal but you can’t get me out of here. Extradition processes in the UK
On 11 April 2019, the Metropolitan Police arrested an Australian national at a flat in Knightsbridge. Within minutes, the arrest was dominating social media before being picked up by news outlets. This arrest, on suspicion of conspiracy to commit computer intrusion, even kept Brexit off the front pages of newspapers - briefly.
The flat in question was the Ecuadorian embassy and the man arrested was Julian Assange, who is now potentially facing forced removal, or extradition, to the USA to answer espionage charges. At the time of writing, Assange is in Belmarsh prison awaiting the recommencement of extradition proceedings, which were halted due to the Covid-19 pandemic.
Extradition is a cooperative law enforcement process whereby one jurisdiction delivers an individual accused or convicted of criminal behaviour to another jurisdiction upon request. Where one jurisdiction requests extradition, the jurisdiction receiving the request will undergo its own extradition process, culminating in a hearing at which a judge will consider any bars to extradition. The judge will also consider proportionality and any relevant human rights issues before granting or rejecting the extradition request.
There are various ways in which an extradition request can arise.
Although INTERPOL Red Notices are a newsworthy method of bringing about extradition (see our previous blog post, here), they are more commonly used when the whereabouts of a wanted individual is unknown. Usually, jurisdictions will rely upon bilateral and multilateral agreements to initiate extradition requests. These treaties tend not to oblige a state to comply with an extradition request from a counterparty but provide clear rules under which the request will operate.
Treaty-based extradition processes provide more clarity on the likely approach to any extradition request than reliance upon common law processes. However, it is important properly to understand the relevant agreement between the jurisdictions engaged.
The most common bilateral agreements are Extradition Treaties and Mutual Legal Assistance Treaties (“MLATs”). An Extradition Treaty defines how requests for extradition are considered between signatories. MLATs, in contrast, dictate terms of cooperation between countries regarding the exchange of information and interrogation of suspects in foreign countries. The UK is currently party to 28 Extradition Treaties (which span most of South America and include much of North Africa and the USA) and 42 MLATs (with jurisdictions as close as Ireland and Spain and as far afield as Malaysia, Hong Kong and Nigeria). A list of all current treaties can be found here.
Multilateral networks, like the European or Inter-American Conventions on Mutual Assistance in Criminal Matters, create standardised multilateral formulae on matters of cooperation and extradition. Similarly, the European Arrest Warrant (“EAW”), which operates between member states of the European Union, is intended to provide a smoother extradition process. There are fewer bars to extradition when using the EAW - for example, there is no exception which allows jurisdictions to refuse to extradite their own nationals. – and the timeframe for the process is very short.
As things stand at the time of writing, following the UK’s departure from the EU and once the transition period is over, the UK will no longer be part of the EAW system. This means that, unless and until other arrangements are agreed, future extradition requests with European states will be governed, as with many countries outside the EU, by the 1957 Convention on Extradition, leading to increased costs, delay and complexity in extradition proceedings. Certain EU states already do not extradite their citizens to countries outside the EU. Three EU states – Germany, Austria and Slovenia – have already announced that they may even refuse to surrender their respective nationals to the UK pursuant to an EAW during the transition period.
The process of extradition in the UK
In the UK, the relevant process will typically be quicker if commenced under an EAW; individuals could find themselves subject to a hearing within 21 days of arrest and extradition as soon as 10 days after that (subject to appeal). Proceedings relying on the 1957 Convention on Extradition take far longer. Whether under the EAW or otherwise, the first step taken is usually for an extradition request to be converted into an arrest warrant by either the National Crime Agency or UK Central Authority. A court will consider the merits, along with any bars to extradition. Where extradition is granted by the court under an EAW, subject to the right of appeal, the individual will then be extradited. In other cases, the court sends the decision to the Secretary of State. The individual may make representations at this stage and also has the right to appeal the final decision. During each stage of the process, the Crown Prosecution Service advises and represents the requesting entity. At the end of the Brexit transition period, as the UK will no longer be subject to the EAW, it is likely that all future extraditions will go through the Secretary of State, following an uncondensed timeline, and be subject to more potential stages of appeal.
Managing and mitigating risk
The process of extradition is complex and can be stressful. Managing and mitigating risk can help reduce concerns. In our experience, important considerations include:
- Bail: Where an extradition hearing is inevitable and bail is a reasonable prospect, the application for bail should be prepared well in advance. The practical considerations material to a bail application include whether surety will be provided by insurance (for company directors this will be D&O insurance) and if not, who will provide surety, the nature of restrictions on travel and, of course, what might happen if, like Assange, the individual is remanded in prison.
- Engagement: Both international and local organisations should be approached with care. Issues like the seniority of contact points, pre-emptive communications and media involvement need to be considered carefully and, we have found, require a bespoke approach tailored to each jurisdiction.
- Jurisdiction: Extradition is a transnational process but jurisdictions apply rules differently in their national courts. Requests brought under the EAW, for example, oblige the proposed application to undergo a proportionality test before a certificate is issued. Similarly, in jurisdictions which are signatories to the European Convention on Human Rights (“ECHR”), extradition must be consistent with the rights set out therein (e.g. respect the right to family life) and give rise to no prospect of breaches of the ECHR in the requesting territory (e.g. torture), even where the territory is not a signatory.
- Preparation: Where there is a risk of arrest and request for extradition, all Extradition Treaties and MLATs must be fully understood prior to arrival in the jurisdiction. While extradition under the EAW is a comparatively quick process, under certain treaties (such as that between the UK and the USA) the process can be long.
- COVID-19: The challenges of a global pandemic have introduced further complexities into extradition law. A recent case in the UK considered whether extraditing a man with asthma and diabetes to a prison in New York City, where incidence of the virus was high, would violate his ECHR rights. The conditions of detention have always been considered in extradition cases. However, the impact of the pandemic inside prisons and the precautions taken to address it have expanded the matrix of judicial consideration on this point.
The impact of the loss of the EAW to facilitate extradition between the UK and the EU member states, together with the likelihood that, as a result of Brexit, the UK will no longer be able to participate in key security and criminal justice cooperation instruments, including Europol and Eurojust, has raised considerable concern among law enforcement agencies. The government has repeatedly stated that it remains “committed to seeking a balanced and reciprocal agreement in this area”, failing which “the UK has well-developed and well-rehearsed plans in place to transition cooperation with EU Member States to alternative, non-EU arrangements by the end of the Transition Period, where available.”1 Exactly what those plans are is unclear. Whatever the eventual outcome, however, anyone facing possible extradition should not hesitate to seek legal advice about this complex and changing enforcement process.