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?
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  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  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?
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  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 email@example.com 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, SolicitorRead More
It is not uncommon in extradition cases for people to be arrested many years after an offence has happened.
The Extradition Act provides some protection for people who knew nothing about a case until they are arrested. They can argue that they should not be extradited because of the ‘passage of time’. It doesn’t matter if you are just accused of an offence or were convicted in your absence. However, there are some restrictions. If you knew about the case, and chose to leave the country because of it or simply ignored it, you cannot rely on the passage of time.
Even if you knew nothing about the case, that isn’t the end of it. It isn’t enough just to say that because so much time has passed since the offence you shouldn’t be extradited. You also have to show that it would be ‘unjust’ or ‘oppressive’.
Unjust or oppressive
Here, ‘unjust’ basically means that you would not be able to have a fair trial. For example, witnesses might have died or gone missing, or the case relies on people’s memories, which obviously don’t always last that long.
Whether it would be ‘oppressive’ will depend on your personal situation; family, education, work and so on, and especially whether or not you have committed offences in this country.
There is no set amount of time that has to have passed before a Judge will say you should not be extradited. It will also depend on what offence you are accused of. If you are accused of murder, much more time will have to have passed than if you were accused of theft, for example.
How can we help?
Please contact us on 0207 388 1658, or email firstname.lastname@example.org if you wish to discuss your extradition matter with us further. We can also tell you if you will be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
If you want to know more about the basics of extradition, you can do so here
John Howey, Senior SolicitorRead More