EXTRADITION

Extradition proceedings are complex, and anyone who is worried about a possible extradition is encouraged to instruct George Hepburne Scott an extradition specialist lawyer. 

If you or a family member are currently facing extradition proceedings, please call George Hepburne-Scott an extradition specialist lawyer in Central London in close proximity to Westminster Extradition Court on 0207 936 3637 or enquiries@ukextraditionlawyer.com

Extradition on a European arrest warrant is not a formality if you instruct George Hepburne-Scott - a leading UK extradition lawyer is ready to challenge any EAW immediately.

In order to extradite from the UK there are a number of Bars or hurdles the prosecution must overcome plus other procedural issues  ‘bars’ to extradition include:

1. Double jeopardy

This means facing proceedings for the same offence twice.

2. Passage of time

Where so much time has passed since the original offence that it is unfair or oppressive to proceed against a defendant.

3. Age

Where the defendant would have been under the UK age of criminal responsibility when the original offence took place.

4. Hostage taking

Whether an earlier extradition has already taken place from another country, consent may be needed before another extradition takes place.

5. Extraneous issues

This means when the proceedings in the foreign state are actually a cover for an ulterior motive, or where the person will be disadvantaged during the foreign proceedings because of that same ulterior motive, for example, racial or political victimisation.

FURTHER ASPECTS A JUDGE MUST CONSIDER

Conviction in absence

Although putting someone on trial in their absence is fairly unusual in the UK, it happens more in the EU. This means that EAWs are sometimes issued following a person being convicted and sentenced without having been present at their trial. In those cases, the person cannot be extradited unless they will have the right to a retrial in the foreign state.

Compatibility with the Human Rights Act 1998

This means that extraditing the person must not breach of his or her human rights as laid out in the European Convention on Human Rights. These rights include the right to a fair trial, protection from torture or inhuman treatment, the right to respect for family life etc.

The Dual Criminality Test

The offence for which the person is extradited must be an offence in the UK as well as in the foreign state, unless it is one of a list of 32 specified serious offences which are considered to be crimes in all countries (for example, murder, drug trafficking etc.). If the offence is on that list, the ‘seriousness’ test is increased to a maximum sentence of at least 3 years in prison (where the person is merely accused) or an actual sentence of at least 12 months in prison (where the person has been convicted and sentenced).

Appeals against extradition

Either side in an extradition case can appeal the magistrates court decision to the High Court. A final appeal can go to the Supreme Court but only in cases where there is a ‘point of law of general public importance’. This usually means where the legal issue is one that could change the way the law works for other cases in the future.

Extradition Act Part 2 - Extradition Treaty Countries

There are two additional categories of extradition. The first category includes European countries which aren’t part of the European Arrest Warrant system (for example Norway and Croatia), and also many non-European countries including Canada, the US, Australia, New Zealand, South Africa and Russia. These countries do not have to show the strength of the case against the person, but must provide details of the case in the foreign country.

The second category includes extradition treaty countries from Africa, Asia, South and Central America, and the Caribbean, here the extradition court has to be satisfied that there is a prima facie case (i.e. on the face of it an obvious case to answer). Extradition cases involving this category of country (which includes, Thailand, Jamaica, Morocco, Egypt, India, Pakistan) can be defeated on the strength of the evidence. The UK court must be persuaded that the case against the defendant has some real basis before extraditing. George Hepburne-Scott and Magdalena Motyl have won many victories in extradition cases

Each requires the agreement of both the court and the UK’s Home Secretary. For both categories the details of the offence and identity of the person must be proved.

Bars to extradition apply, including the rule against double jeopardy, and extraneous issues, Human rights issues, and the ‘dual criminality test’. Any of these may also prevent extradition.

If the court has authorised extradition, in cases where there is no European Arrest Warrant, the Home Secretary must consider whether to allow extradition. He must consider whether the death penalty may apply, and if so must refuse extradition unless the country gives reassurances that the death penalty will not be used. The Home Secretary will also refuse extradition unless he is sure that there are rules in the foreign country to stop the person from being tried for any offences which weren’t included within the extradition request.

Bail in extradition proceedings

There is a presumption in favour of bail in extradition proceedings where there has not yet been a conviction in the foreign country. The foreign country (usually represented by the CPS), will often try to prevent this, by making objections in court on the basis of the likelihood that the person will not attend. Because there is often an accusation that the person has ‘escaped justice’ in the original country, this may be quite persuasive to a judge. Because of this, evidence of ties to the UK and their family life here can be particularly important. The court may often require a cash security before granting bail.

In cases where the person has already been convicted in the foreign state, bail may be more difficult to obtain.

fees

I can operate through Legal Aid in many cases, in other words the Government will pay your fees, although you will have to pass the means test for this. I can also accept private instructions and where this is the case I provide extremely competitive fee structures.

Extradition Appeals

If a person is ordered to be extradited at the magistrates’ court, that person has a right of appeal to the High Court. In some cases, there may be a right of appeal to the Supreme Court, but permission, or ‘leave to appeal’, is required.

SOME OF OUR RECENT EXTRADITION CASES

ROMAN JAN KOLODZIEJCZYK -v- CIRCUIT COURT IN KRAKOW, POLAND CO / 1783 / 2017

This case involved a conviction for Murder where the appellant had served many years in Poland but then come to the UK in breach of his post-release licence. His extradition was ordered at Westminster Magistrates’ Court. George Hepburne Scott was instructed on appeal to the High Court. George successfully argued that the initial judge had not taken proper account of the time spent on remand in this country and the EAW was discharged and the appellant released. 

MAREK JAWORSKI -v- REGIONAL COURT IN WARSAW, POLAND CO / 836 / 2017

This was a case involving multi £M international fraud involving allegedly fraudulent international energy trading. Extradition had been ordered at Westminster Magistrates’ Court. George Hepburne Scott was brought in on appeal to the High Court. George successfully argued the appeal on four grounds: (i) s.2 – insufficient particulars, (ii) s.10 – not true extradition offence, (ii) s.14 - Passage of Time, (iii) Article 8 – right to a private and family life. Following the successful appeal, the EAW was discharged.

VIDMANTAS MICHELEBERTAS -v- SIAULIAI REGIONAL COURT, LITHUANIA CO / 1637 / 2017

This was a case involving a Robbery that the appellant had committed as a juvenile. His extradition was ordered at Westminster Magistrates’ Court and he instructed George Hepburne Scott on appeal. At the High Court, George successfully argued that due to the appellant’s age at the time, the passage of time, and the time he had spent on remand, he ought to be discharged under Article 8 (right to a private and family life). Following the successful appeal, the EAW was discharged and the appellant released.

Arciuch v Polish Judicial Authority [2016] CO/3229/2016

This was a case involving argument in the High Court relating to the Supreme Court authority of Sas (Appellant) v Circuit Court in Zielona Gora and District Court in Jelenia Gora, Poland (Respondent) [2016] UKSC 36. The original grounds of appeal raised issues of (1) Article 8 European Convention on Human Rights point (right to a private and family life).and (2) Failure of the EAW to cite the domestic warrant (the s2(6) point).

Watroba v Polish Judicial Authority [2016] CO/2160/2016

This was a case that we took to the High Court on behalf of our client. We argued that to extradite him would involve a disproportionate interference in his private and family life contrary to Article 8 of the European Convention of Human Rights and Section 14 of the Extradition Act 2003

Zajaczkowski v Polish Judicial Authority [2016] CO/318/2016

This is a case that we have taken to the High Court on behalf of our client and we have been granted permission to appeal by the High Court on the basis that we have an argument under Article 8 of the European Convention on Human Rights (right to a private and family life).

WW & others v Regional Court in Wroclaw, Poland [2016]

This case raised an issue in relation to the passage of time, under Section 14 of the Extradition Act 2003, where the Requested Person left Poland whilst subject to a suspended sentence, which had subsequently been activated. The appeal was dismissed on 2nd March 2016, however, an application has been made to certify points of law of general public importance and for leave to appeal to the Supreme Court. 

Sarzynski v District Court in Rzeszow, Poland [2016]

This warrant was issued for a single conviction of drink driving where a sentence of 6 months imprisonment was outstanding. It was challenged and discharged at Westminster Magistrates' Court on 6th April 2016 as it did not comply with s.10 and s.65 of the Extradition Act 2003.

Reci vJudicial Authority of Italy [2016] EWHC 994 (Admin)

This was a case involving expert consideration of whether under Italian law a decision had been made to charge/try the defendant, re Section 12A Extradition Act 2003.

Spaczynski v Riga Regional Court (Latvia) [2016]

This was a complex extradition case involving assurances from Latvia regarding the right to a retrial under s.20 of the Extradition Act 2003. The CPS had sought further information from the Latvian authorities regarding this and we challenged this in the High Court on behalf of the requested person. This case is now pending a decision re advancing to the Supreme Court.

Krzeminski v Poland [2016]

Extradition Order was dismissed on 21st December 2015 under Section 2(6)(b) of the Extradition Act 2003. It was a conviction warrant challenged on the basis of a failure on behalf of the Polish Judicial Authorities to provide adequate information in relation to the conviction and the court proceedings in Poland. 

Pawlak v District Court in Koszalin, Poland [2016]

This warrant was issued for various offences, including the drink driving offence where a sentence of 180 days was outstanding. An appeal was allowed in relation to the offence of drink driving, as the way the warrant was worded, it did not constitute an offence in the UK. The High Court decided in favour of our client. 

Kosztyla v Circuit Court in Katowice, Poland [2016]

This was an accusation warrant, which related to 2 offences of facilitating another person to commit a theft and, with the purpose of gaining a material benefit, causing another person to disadvantageously dispose of his property. The maximum custodial sentences that could have been imposed were 10 years’ and 8 years’, respectively. The Extradition Order was dismissed under Article 8 ECHR- the right to private and family life.