The extradition hearing is held at a Magistrates Court, before a District Judge, who is responsible for determining that the offence specified in the Part 1 warrant is an extradition offence, before considering whether extradition is barred by virtue of the statutory bars to extradition. The statutory bars are:
- the rule against double jeopardy;
- absence of a prosecution decision;
- extraneous considerations (for example, the person’s race, religion, nationality, gender, sexual orientation or political opinion);
- passage of time;
- the person’s age;
- specialty (the rule intended to ensure that an extradited person is not dealt with in the requesting territory for any offence other than for which he was extradited);
- the person’s earlier extradition to the UK;
- the person’s earlier transfer to the UK by the International Criminal Court;
- forum (where the judge decides a substantial measure of the requested person’s ‘relevant activity’ was performed in the UK and decides that extradition should not take place); and
- hostage-taking considerations.
Passage of time and the person’s earlier extradition to the UK are not bars to extradition for the purposes of certain re-extradition cases.
EA 2003, s. 11; Sch 1 para 2
If the judge decides that the person’s extradition is not barred, she must then decide whether the person’s extradition is compatible with his ECHR rights, and if yes, she must then order that the person be extradited to the territory in which the EAW was issued.
Note that, in cases of persons alleged to be unlawfully at large after conviction, the judge must satisfy itself as to whether that person was tried fairly in absentia.
Further, for ‘accusation’ EAWs, the judge must be satisfied that extradition would be proportionate, and in accordance with ECHR rights, or order the person’s discharge. Equally, where the court rules that the extradition process is being abused by the requesting state, it must stay or dismiss the proceedings accordingly.
EA 2003, s.10; s.11; s20; s21; s21(A) and s30
Under the EAW Framework Decision, a final decision on the execution of an EAW must be taken within 60 days of the arrest of the requested person (extendable in exceptional circumstances). A person whose extradition has been ordered must be extradited within 10 days.
Both the extradition order, and an order discharging a person, may be subject to appeal. In the case of the latter, the person must be remanded in custody or on bail.
European framework decision art 17.3
Further, failure to commence a hearing on time, and a failure to provide adequate translation facilities, or to consider written submissions, or a refusal to issue a witness summons, are susceptible to judicial review.