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A resource for top extradition lawyers - a history of Extradition up to the 2003 Act

Definition of Extradition

Extradition is the formal name given to the process whereby one sovereign state (the requesting state) asks another sovereign state (the requested state) to return to the requesting state someone present in the requested state (the defendant) in order that he may be brought to trial on criminal charges in the requesting state. The process also applies where the defendant has escaped from lawful custody following conviction in the requesting state – or is otherwise unlawfully at large – and is found in the requested state.

Extradition should be distinguished from deportation, which involves the country in which the person is present initiating the removal process, and which in not necessarily connected to criminal proceedings.

History of Extradition Legislation in the UK

Extradition in the UK has a history stretching back into the early part of the second millennium when, in 1174, Henry II and William of Scotland agreed to deliver up fugitive offenders. Similar agreements were reached in 1303 between Edward I and Philip of France, and in 1496 between Henry VII and the Duke of Burgundy (Booth, British Extradition Law and Procedure (1980), Vol I, LVII).

The modern law of extradition started to develop in earnest in the nineteenth century when Great Britain began to negotiate extradition treaties with foreign states. A treaty was concluded with France in 1842, and the Webster-Ashburton treaty with the United States of America was signed in 1843 (Stephen, History of the Criminal Law of England (1883), Vol 2, 66). These treaties were incorporated into law by Act of Parliament (6 & 7 Vict, c 75 and c 76).

These Acts only covered a limited number of serious crimes but were notable in that they contained the requirement of dual criminality, i.e. the requirement that the offence charged should be a crime in both countries. This remained a feature of extradition legislation until the incorporation of the European arrest warrant in Part 1 of the Extradition Act 2003 (EA 2003).

In 1868 a Select Committee inquired into the state of treaty relationships concerning extradition and invited top lawyers of the time to contribute, its recommendations were the model for what became the Extradition Act 1870 (EA 1870). The purpose of this Act was to provide the procedural machinery for the surrender of defendants under any treaty then in force and any that may conclude after its enactment. Each extradition treaty set out the arrangements for extradition with the foreign state and the conditions under which extradition would be granted. Section 2 of the EA 1870 provided that, where such an arrangement had been made, Her Majesty might by Order on Council direct that the 1870 Act apply in the case of that foreign state, subject to the limitations contained in the Order of Council. Once an extradition treaty was concluded with a foreign state, an Order in Council under s.2 was made applying the 1870 Act and extradition to that foreign state became possible.

The EA 1870 made fugitive criminals liable to surrender for ‘extradition crimes’. These were defined in s.26 to be crimes which, if they had been committed in England of within English jurisdiction, would be one of the crimes described in the First Schedule to the Act. The First Schedule (in its original form) contained a generic list of 19 offences for which extradition would be granted. Extradition could not be granted for offences not falling within the list. As new crimes were created, the list had to be amended to enable extradition to take place for these crimes. Top extradition lawyers would seek to argue that crimes were not within the list.

In 1881 Parliament enacted separate legislation to regulate extradition within the Empire. The Fugitive Offenders Act 1881 governed the return of the defendants between the various parts of the British Empire and continued in force until the 1960’s when the development of the Commonwealth necessitated fresh legislation.

In 1966 the Commonwealth Law Ministers drew up a new scheme, the ‘Scheme relating to the Rendition of Fugitive Offenders within the Commonwealth’ (Cmnd 3008). The scheme was based on reciprocity and substantially uniform legislation rather than on treaty arrangements. The Fugitive Offenders Act 1867 was passed to give effect to the scheme in the UK. The 1967 Act permitted extradition for offences against the law of the requesting Commonwealth country punishable with more than 12 months’ imprisonment which fell within the general descriptions in Sch 1 to the Act. Clearly the words ‘general descriptions’ began to give early extradition lawyers scope to develop arguments resisting extradition requests.

In 1974 and 1982 Home Office working parties considered the operation of the EA 1870. Whilst the 1974 Report did not result in any changes to the law, by 1982 the need for reform had been recognized, in particular because of problems of compatibility between the English common law system and continental civil law jurisdictions. The 1982 Report was followed in 1985 by a Green Paper on Extradition (Cmnd 9421) and a White Paper (Cmnd 9658).

The Extradition Act 1989 (EA 1989), which came into force on 27 September 1989 finally gave extradition lawyers a comprehensive legislative framework which covered all extraditions in and out of the UK. All earlier extradition Acts were repealed by the EA 1989.

The most significant feature of the EA 1989 was the removal of the need for certain European treaty partners to provide prima facie evidence. For lawyers this marked a significant shift in extradition law.

The EA 1989 foreshadowed the enactment of the current extradition Act, the EA 2003.