A defendant arrested pursuant to a certified extradition request issued by a Part 1 territory, or pursuant to a provisional arrest warrant in anticipation of the receipt of a Part 1 warrant, must then be brought before the extradition judge for an initial hearing.
Extradition Act 2003 (“EA 2003”), ss. 1- 8B
EAWs must be certified by the designated authority (currently the National Crime Agency (“NCA”)). An EAW can be certified if the NCA is satisfied that it was issued by a judicial authority with the function of issuing arrest warrants in the Part 1 territory.
The EAW must contain, either:
- A statement that the subject of the request is wanted in the requesting territory for the offence(s) specified in the warrant and for the purpose of being prosecuted for that offence;
- Particulars of the individual’s identity;
- Particulars of any other warrant issued in the Part 1 territory for the person’s arrest in respect of the offence; and
- Particulars of the circumstances of the offence.
- A statement that the subject of the request has been convicted in the requesting territory for the offence(s) specified in the warrant and the request is issued for the purpose of their serving a sentence of imprisonment or other form of detention;
- Particulars of the individual’s identity;
- Particulars of the conviction;
- Particulars of any other warrant issued in the Part 1 territory for the person’s arrest in respect of the offence if the individual has not been sentenced for the offence; and
- Particulars of the sentence which has been imposed under the law of the Part 1 territory in respect of the offence, if the person has been sentenced for the offence.
In 2015 a proportionality filter was introduced into the EA 2003, in relation to ‘accused’ persons (as distinct from “convicted” persons) and extradition requests from Part 1 countries. In such cases, the NCA must not issue a certificate if it is clear to the designated authority that a judge proceeding under s 21A EA 2003 would be required to order the person’s discharge on the basis that extradition would be disproportionate.
EA 2003, s. 2
An arrest warrant or a provisional arrest warrant may be executed by:
- a constable or customs officer in the UK, or
- a service policeman, who may in certain circumstances also execute a warrant outside the UK.
EA 2003, s. 3
Service of an arrest warrant or provisional warrant
A copy of the arrest warrant or the provisional arrest warrant does not need to be given to the defendant at the time of the arrest, but must be provided to him as soon as practicable thereafter.
If the requested individual applies for discharge on the basis that he has not been provided with a copy of the arrest warrant or provisional warrant as soon as practicable, the extradition judge may order his discharge.
EA 2003, s. 4(2), s. 4(4)
Timing of initial hearing
A defendant must be brought before the extradition judge as soon as practicable after arrest or provisional arrest. If the requested individual applies for discharge on the basis that this was not complied with, and the judge agrees that this provision was not compiled with, the judge must order their discharge.
EA 2003, s. 4(3), s. 4(5)
A constable, customs officer or policeman may arrest an individual without a warrant if they have reasonable grounds to believe that a Part 1 warrant has been or will be issued by an authority of a Part 1 territory with the function of issuing arrest warrants.
EA 2003, s. 5
Initial hearing following provisional arrest
A person arrested under a provisional EAW must be brought before the court within 48 hours of their arrest and a certified extradition request and a certificate under section 2 in respect of the warrant must be produced to the extradition judge. If either of these documents are not produced, the judge may extend this period by up to 48 hours if they conclude, on the balance of probabilities, that the documents could not reasonably have been obtained within the original 48 hours.
EA 2003, s. 6
Proceedings at the initial hearing
At the initial hearing the extradition judge must decide, on the balance of probabilities, whether the person brought before him is the person in respect of whom the relevant warrant was issued.
EA 2003, s. 7(2)
If they conclude this is the case, they must:
- fix a date for the extradition hearing within 21 days of the date of the defendant’s arrest;
- inform the defendant of the contents of the Part 1 warrant or, in the case of a provisionally arrested defendant, inform the defendant that he is accused in a Part 2 territory of the commission of an offence or alleged to be unlawfully at large after conviction in a Part 2 territory;
- give the defendant the required information about his ability to consent to extradition; and
- remand the defendant in custody or on bail.
EA 2003, s. 8(1)
The extradition judge has the power to adjourn the initial hearing. The extradition judge must adjourn the initial hearing if he is informed that the defendant is charged with an offence in the UK, and may also do so if the defendant is in custody serving a sentence of imprisonment or another form of detention in the UK.
EA 2003, ss. 8A, 8B