Habeas Corpus in Extradition
European Arrest Warrants (EAW) strictly speaking, have no operative value in England and Wales. Instead, we have the Extradition Act 2003 that allows one’s extradition to be acted on if there is a Part 1 or a Part 2 warrant. Part 1 warrants are presently only for EU territories and therefore EAWs are incorporated through the Act.
To qualify as a Part 1 warrant, section 2 of the Act must be complied with. Part 1 warrants are separated into two categories – accusation and conviction cases. The information required for accusation and conviction cases is set out in section 2 in very clear terms.
What happens if a Part 1 warrant does not comply with section 2?
Cando Armas
It has been argued that if the warrant does not comply with the requirements in section 2, then there is no power of arrest and remand, and that person should be discharged immediately. This was the position in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1. Strict compliance was necessary; at paragraph 24, the Court said ‘the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statue.’ Cando Armas is very clear that there is no scope for correcting any deficiency in the purported Part 1 warrant.
However, since the UK opted back into the Framework decision on EAWs, there has been a sea-change in this interpretation. The position and practice at Westminster MC now, is to allow the CPS, acting on behalf of the Judicial Authority, to obtain further information to correct the deficiencies in the purported Part 1 warrant. In the meantime, a person may be remanded into custody or on bail. Some EU countries are very cooperative and will provide further information quickly, others not so. In the meantime, a person’s liberty is at stake.
Arguably, Cando Armas is still good law but there is certainly conflict and tension in the interpretation of section 2 of the Act, especially so with the case of Di Benedetto and Alexander [2017] EWHC 1392 (Admin) which we explored in our articles Can further information be admitted in Appeal hearings? and Extradition ordered for Tarik Chadlioui; what next?
Habeas Corpus
A habeas corpus application may be an appropriate remedy if you have someone in custody on an invalid and/or deficient Part 1 warrant. The availability of this remedy was confirmed in Pinto v the Governor of HMP Brixton [2004] EWHC 2986 (Admin).
However, if a person is remanded on conditional bail following an invalid and/or deficient Part 1 warrant, perhaps an appeal by case stated may be an appropriate avenue. Westminster MC’s practice is to remand a person on stringent bail condition in extraditions proceedings. Conditions of residence, curfew, reporting and a security are the norm. They too interfere with a person’s liberty, albeit in a less intrusive manner. As far as we are aware, this has not yet been litigated in the courts.
It is important that anyone facing extradition has a specialist extradition solicitor study the EAW/Part 1 warrant to ensure that it complies with section 2 of the Act. The onus lies on the requested person to raise this issue, if there is one, at the initial hearing. Ideally, the issue of the validity of the warrant should be dealt with ahead of the full extradition hearing.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
Cheryl Low, Solicitor
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.
