Challenges to Extradition

Whilst each case is unique our extradition barristers bring unrivalled advice through our extensive experience and understanding of extradition procedure and tactics.

Given that many individuals opt not to consent to extradition, 9BR Chambers provides expert advice on potential challenges, or extradition bars.

Whilst every extradition case is unique the application of extradition bars follows certain rules. For example, whilst certain bars apply exclusively to request from specific countries, others hang on whether the person is sought before conviction or ‘accusation cases’ or after conviction, even if before being sentenced.

Potential challenges that the Extradition Act 2003 allow are:

• Human rights, as defined in the European Convention on Human Rights 1950. These include balancing the serious interference with a person’s private and family life with the public interest in a functioning extradition system (Article 8) or if prison conditions are so poor that there is a real risk that detention would lead to inhuman treatment (Article 3).
• The state of a person’s physical or mental health (or a combination of the two) make extradition oppressive.
• The Arrest warrant (EU cases) is invalid, or the extradition request (non-EU cases) is incomplete, because of missing information (such as a proper description of the offending) or documentation (such as a copy of an arrest warrant or detention order).
• The conduct, or part of it, is not a criminal offence in the UK (dual criminality) or fails the minimum sentence or punishment threshold. 
• A person’s extradition would either be unjust and/or oppressive because of the passage of time since the alleged offence took place or the conviction became final. This challenge on delay, the reasons for a person’s departure from the requesting state, and what has occurred in the intervening period.
• A person cannot be extradited if they have already been tried on, or punished in respect of, the same facts resulting in double jeopardy (equivalent to non bis in idem).
• If extradition is sought for prosecution, forum may apply: a person should not be extradited because a substantial portion of their conduct took place in the UK, and it would not be in the interests of justice to extradite them.
• Where convicted, the person was tried in their absence meaning that neither they nor their instructed lawyer appeared in criminal proceedings before the requesting state, and the person was not deliberately absent from proceedings, then they must be entitled to a re-trial if extradited. A trial not only relates to a finding of guilt at first instance, but may also apply to any appeal proceedings, sentence hearing, or another hearing which merges sentences.
• Where sought pre-trial in an EU country, extradition would be disproportionate when considering the likely sentence on conviction, the seriousness of the offence, and the possibility of less coercive measures to extradition.
• Where the extradition request was issued because of, or there is a real possibility of prejudice at trial or punishment because of, extraneous considerations, namely a person’s race, religion, nationality, gender, sexual orientation, or political opinions.