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After the EAW: the UK’s new legislation

Posted by: Gherson Extradition

On 22 October 2020 the Extradition (Provisional Arrest) Act 2020 received Royal Assent. 

This new legislation has been introduced to plug a perceived gap within the current extradition framework (and of course that which will exist after Brexit) and provides for new powers to arrest individuals wanted for extradition without a separate domestic arrest warrant where they are wanted by certain trusted countries.

Under current arrangements, the Extradition Act divides the world into two camps – Category One territories under the European Arrest Warrant (“EAW”) and Category Two territories for all other countries we have extradition arrangements with. Individuals who are subject to an EAW can be arrested immediately if they are detected by police. Individuals wanted by countries outside the EAW (Category Two Territories under the Extradition Act), however, cannot be arrested on sight and there is a further requirement for a warrant to be obtained from the Magistrates’ Court where a judge must be satisfied of various matters before issuing an arrest warrant. As things stand, from 1 January 2021 when the UK is no longer part of the EAW, all the current Category One territories will become Category Two territories.

The new act seeks to introduce a power to arrest individuals immediately to certain Category Two territories. The act designates the NCA as the central authority tasked to identify alerts – whether direct messages to the UK authorities or INTERPOL Red Notices – which have been issued by any country designated as a “Specified Category Two territory” for a sufficiently serious offence. The NCA will certify those alerts and identify whether an individual can be subject to immediate arrest and brought before a judge as soon as practicable. 

The power therefore opens the possibility for individuals to be arrested in the UK purely based on the existence of an INTERPOL Red Notice and without any involvement of a judge in the UK, provided that the alert emanates from a Specified Category Two territory and provided the NCA has satisfied itself of the conditions in the act and certified it. This raises concerns as to the prospects of arrests stemming from INTERPOL Red Notices, which are frequently issued on relatively flimsy grounds and with little or no independent oversight. Importantly it shifts the responsibility for issuing an authorisation to arrest away from a judge and to the NCA.

Whilst the list of specified territories is initially limited to Australia, Canada, Liechtenstein, New Zealand, Switzerland and the USA, the Act makes it it clear that this list can and will be extended to include EU Member States once those countries become Category Two territories.

It remains to be seen how many and which other countries are added to the Category Two list in due course by the Government. At a time when the Government is seeking to strike trade deals across the world it is to be hoped that membership of this list will not be used as a bargaining chip for regimes with which we should be exercising particular care before processing extradition requests.

The real question will be how commonplace arrests under the new powers will be and how the NCA will determine which requests to certify under these new powers, however a cynic may well look at this legislation as a prime example of the subtle encroachment of an ever-expanding executive and an erosion of important judicial safeguards.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2020


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