Extradition Bill
Frequently Asked Questions 2
EAW | Flowchart | Safeguards | FAQs 2
Within the European Union the new arrangements
will involve the operation of the European Arrest Warrant
(EAW). The main changes are that there will little or
no ministerial involvement in cases, fewer grounds for
disputing surrender and more stringent time limits to
keep the process moving.
Precise arrangements will vary from
country to country but the scenario below outlines how
the UK intends to use the EAW to get people returned
to the UK:
If the British police want to get hold
of someone who has committed a serious crime in the
UK but who has fled to another country, they will ask
a judge to issue a warrant for that person's arrest.
The warrant will then go to the National
Criminal Intelligence Service or the Crown Office in
Scotland. They will do a quick check that it has been
completed correctly and send it, via a secure link,
to their opposite number abroad.
The individual can then be arrested
so long as the local police have either received an
EAW, or have good reason to believe that one is on the
way. When the fugitive is brought before the court the
judge will check that the right person has been arrested,
that the warrant has been correctly completed, that
the crime is an extradition crime and that there are
no bars to surrender. When these basic checks have been
made, the judge can order the person's surrender.
It is open to the fugitive to appeal
against his surrender to a higher court, but this must
be on a point of law or fact and is covered by strict
deadlines.
If another EU country is seeking the
surrender of someone in the UK to face justice abroad,
the reverse process will take place.
British Police Officers can arrest
a fugitive when they receive an EAW, or when they have
good reason to believe that one is on the way. All warrants
will be received by NCIS or the Scottish Crown Office,
who will make basic checks, including verifying that
the EAW has been issued by a bona fide source.
After arrest, the individual will have
a hearing date fixed within a short space of time and
then will be bailed or remanded in custody as appropriate.
At the main hearing the judge will
check that the right person has been arrested, that
the warrant has been correctly completed, that the crime
is an extradition crime and that there are no bars to
surrender. When these basic checks have been made, the
judge can order the person's surrender.
In the UK it will be open to the fugitive
to appeal against his surrender to the High Court and
possibly also to the House of Lords, but this must be
on a point of law or fact and is covered by strict deadlines.
For both incoming and outgoing requests
it is hoped that the whole process will take no more
than three months compared to 18 months for incoming
requests and 8 months for outgoing requests now.
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The main advantage is that it will
be much swifter. This should mean that the victim and
the alleged criminal get the justice they deserve quicker.
And it should save the UK money that would have been
spent on detention and legal aid costs.
The EAW will also bring about some
specific changes that are of benefit:
- It will no longer be possible automatically
to refuse to extradite someone to the UK if the
alleged crime occurred a long time ago. Some other
countries bar prosecution for crimes if they occurred
say more than 10 years ago. The UK believes that
if someone has committed a crime we should not be
prevented from prosecuting them simply because they
have got away with it for a certain number of years.
- It will be easier to prosecute
people for some fiscal offences.
- The political offences exception has been removed.
- It will no longer be possible for
a country to refuse to extradite someone to the
UK simply because they are one of their nationals.
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All requests for extradition under
a European Arrest Warrant will be subject to a hearing
before a District Judge or equivalent, with an avenue
of appeal to a higher court, and the House of Lords,
if the judge allows the person's extradition.
In addition there will be safeguards
in the country that the fugitive is returned to as all
our EU partners have incorporated the European Convention
on Human Rights (ECHR) into their laws, guaranteeing
the right to a fair trial.
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No. The legislation will have no effect
on the common law right of habeas corpus.
However, the existing right of appeal
via statutory habeas corpus will be replaced by an equivalent
right of appeal to the High Court against a decision
of the District Judge.
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No. The proposals for much closer co-operation
with our EU partners do not come out of the blue. We
made clear our support for the principle of mutual recognition,
whereby one country recognises the judicial decisions
of another, back at the EU Summit at Tampere in 1999.
Also proposals to revise extradition
law, including a backing of warrants scheme with EU
partners, were included in the Review of Extradition
Law published in March 2001.
It is true, however, that the events
of September 11th added impetus to plans
for the EAW.
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No. The EAW does not allow someone
to be surrendered for interrogation. It follows the
normal practice of previous extradition laws, which
provide for the handing over of persons either suspected
or convicted of extraditable offences, solely for the
purposes of trial and/or imprisonment.
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We welcome the quashing of the convictions
of the plane spotters on appeal.
The Government remains committed to
the principles of mutual recognition. All Member States
of the EU are stable democracies founded on the rule
of law in which individual rights and freedoms are guaranteed
by the European Convention on Human Rights and national
constitutions
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For some of the more serious crimes
the EU has decided to do away with dual criminality.
These crimes are listed in the EAW Framework Decision.
They include crimes like participation in a terrorist
organisation, terrorism, murder and rape. These are
crimes across the EU even though different legal systems
may define them in different ways. A
full list of the crimes can be found in Article 2.2
of the Framework
Decision on the EAW.
However, this will only apply to the
more serious crimes, namely those that attract a maximum
penalty of at least 3 years, rather than the 12 month
threshold for extradition for other offences.
If the crime is on the list but does
not attract a 3 year penalty then the country being
asked to surrender the fugitive can still refuse to
surrender someone if the alleged crime is not also a
crime in their country.
If the offence was not one on the list
then the country considering the request can still refuse
to surrender someone unless the alleged offence is illegal
in both countries and that it carried a maximum of at
least 12 months imprisonment in the country making the
request.
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This is a broad subheading. It is for
the issuing Member State to frame the offence on the
arrest warrant, under its own law.
We should not forget that the UK has
plenty of offences which could fall into this category
such as racial discrimination, incitement to racial
hatred, possession and distribution of racially inflammatory
material and publication of material intended to stir
up racial hatred.
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No. We will not extradite someone from the UK for doing
something in this country that is legal.
Nobody is suggesting that rude comments or jokes about
foreigners are criminal or will suddenly become criminal
under the European Arrest Warrant.
For someone to be extradited for one of the offences
on the list, the alleged crime has to attract a maximum
penalty of at least 12 months in jail. So it is likely
that it would apply to more serious crimes, like incitement
to racial hatred, which is a serious matter that is
already a crime in UK law.
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No. No one can be extradited for conduct
committed in the UK which is not an offence in
the UK.
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Will
foreign police officers come to the UK to arrest British
citizens?
No. The EAW can only be executed by
a UK police officer.
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It is our intention that the Bill should
be fully compliant with the ECHR.
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In 1997 we started to consider the
legislative requirements of the two EU Conventions on
extradition. That developed into a much more extensive
enquiry following the adoption at the Tampere Special
European Council in October 1999 of the principle of
mutual recognition of judicial decisions by the Member
States of the EU.
Then the then Home Secretary announced
to Parliament on 2 March 2000 in the course of his statement
at the end of the Pinochet case that we would carry
out a review of extradition law.
A consultation document "The
Law on Extradition: A Review" was published
in March 2001.
Since then, following the attacks in
the US in September 2001 the EU agreed to speed up action
to implement the EAW. The UK has agreed to try to implement
this by 2003.
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Dual criminality is the principle in
extradition where the country being asked to surrender
the fugitive first checks to see whether the alleged
crime would also be illegal if it took place in its
own country. If it is illegal in both countries then
they would allow the surrender, but if it is not then
they could refuse to surrender the fugitive.
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